                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         OCT 6 1998
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    CHRISTOPHER URBAN,

                Plaintiff-Appellant,

    v.                                                 No. 97-2292
                                                 (D.C. No. CIV-97-224-M)
    TULAROSA, an Incorporated Village;                  (D. N.M.)
    REYNALDO GUILEZ, Chief of
    Police in his private and official
    capacities; MARGIE TRUJILLO,
    Village Trustee, in her private and
    official capacities; JENI
    ALEXANDER, Village Trustee, in her
    private and official capacities; FRED
    UTTER, Village Trustee in his official
    capacity,

                Defendants-Appellees.




                            ORDER AND JUDGMENT          *




Before BRORBY , McKAY , and BRISCOE , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the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.
       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. 34.1.9. The case is therefore

ordered submitted without oral argument.

       Plaintiff Christopher Urban appeals the district court’s dismissal of his

42 U.S.C. § 1983 complaint under Fed. R. Civ. P. 12(c) in favor of the village of

Tularosa, the village’s police chief in his official and individual capacity, and

three of the village trustees, who are members of the village council, in their

official and personal capacities. Plaintiff brought a § 1983 action against

defendants following his termination as a village police officer in 1996. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in part, reverse in part,

and remand.


                                 I. Standard of Review.

       “Where a party moves to dismiss pursuant to Fed. R. Civ. P. 12(c), we will

review the judgment on the pleadings under the standard of review applicable to

a [Fed. R. Civ. P.] 12(b)(6) motion to dismiss.”   McHenry v. Utah Valley Hosp. ,

927 F.2d 1125, 1126 (10th Cir. 1991). Therefore, “[w]e review the sufficiency

of a complaint de novo and will uphold a dismissal of a complaint only when it

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

would entitle him to relief.”   Coosewoon v. Meridian Oil Co. , 25 F.3d 920, 924

                                            -2-
(10th Cir. 1994). “We must accept all the well-pleaded allegations of the

complaint as true and must construe them in the light most favorable to the

plaintiff.” Id. The dismissal of a complaint is a “harsh remedy which must be

cautiously studied, not only to effectuate the spirit of the liberal rules of pleading

but also to protect the interests of justice.”         Summum v. Callaghan , 130 F.3d 906,

913 (10th Cir. 1997) (quotations omitted).


                                       II. Background.

       Plaintiff was hired as a village police officer in June 1994. Although

state law requires a police officer to complete training at the New Mexico Law

Enforcement Academy within a year of being hired, the village police department

did not send plaintiff to the Academy until January 1996. Before then, plaintiff

was allowed to act as a police officer even though he had not yet attended the

Academy.

       In January 1996, plaintiff’s mother put a political sign up in her front yard

supporting the political opponent of defendant Margie Trujillo. Trujillo is a

trustee on the village council, and is the sister of defendant Reynaldo Guilez, the

village police chief. In February 1996, plaintiff failed to pass the Academy

training. The village council met in February 1996 to discuss his failure to obtain




                                                 -3-
the Academy certification. 1 The majority voted to allow plaintiff to return to the

Academy, with a warning that he would be terminated if he failed to obtain the

necessary certification. Defendants Trujillo and Alexander voted in the minority

to immediately terminate plaintiff.

      The village council also discussed an allegation that plaintiff had

improperly used a village credit card issued to him to cover expenses related to

attending the Academy. Plaintiff’s complaint stated this discussion took place

at a special council meeting in March 1996. However, both sides later agreed

in their Rule 12(c) pleadings that the credit card discussion actually took place

during the February 1996 council meeting, and that there had been no subsequent

meeting in March 1996.

      Plaintiff alleges that his direct supervisor told him the village credit card

could be used to cover all his expenses related to his Academy training. Plaintiff

used it for oil, gas, food and, with the prior permission of his supervisor, to buy

a water pump for his car, which he used to drive to the Academy. In fact, the

card was only supposed to be used for oil and gas. Plaintiff’s complaint states he

explained his misunderstanding to the council, and the council voted to allow him


1
     Plaintiff learned at his post-termination hearing that, after he failed his
Academy training, defendant Guilez immediately recommended to the village
mayor and the village council that plaintiff be fired for failing to pass the
Academy training, and that before the council meeting had even occurred, he had
marked plaintiff’s payroll records to reflect that he had been terminated.

                                         -4-
to reimburse the village, although defendants Trujillo and Alexander voted

against allowing him to do so. The credit card charges were deducted from

plaintiff’s wages. The council did not know about the water pump charge until

April 1996, but plaintiff alleges that when he was notified about this charge in

April, he promptly reimbursed the village for that charge as well. Plaintiff was

reissued a village credit card when he returned to the Academy, although he did

not use it.

       Plaintiff obtained the Academy certification in June 1996. Several days

later, at a June council meeting, defendants Trujillo, Alexander and Utter,

a majority of the trustees in attendance, voted to terminate plaintiff because of

his earlier credit card misuse. 2 Plaintiff’s complaint asserts that he was not at

the June council meeting, and first learned his employment status was the subject

of the meeting after the decision to terminate him had been made and announced

at the meeting. The trustees who had previously voted to allow plaintiff to

reimburse the village for the charges were not in attendance at the June 1996

council meeting. Plaintiff alleges that he was never told by his supervisor or any

one else in the police department that his mistaken use of the credit card




2
      Plaintiff learned at his post-termination hearing that his termination had
been requested by defendant Guilez.

                                          -5-
constituted conduct which fell below acceptable standards and that he was never

told by anyone that his job was in jeopardy because of his credit card use.

      Plaintiff then filed this § 1983 action alleging that he was terminated in

violation of his First Amendment rights because the retaliatory actions began soon

after his mother put up a sign in her yard supporting the political opponent of

defendant Trujillo (also defendant Guilez’ sister). Plaintiff also alleges that

defendants violated his procedural due process rights because he was terminated

without the pretermination notice and hearing required by Cleveland Board of

Education v. Loudermill, 470 U.S. 532 (1985). According to the complaint, the

village’s personnel policy manual states that a full-time regular employee has an

expectation of continuing employment. Plaintiff alleges that defendants failed to

follow the termination procedures set forth in both the village personnel policy

manual and in New Mexico statutes providing for the discipline of police officers.

Plaintiff did receive a full post-termination hearing in September 1996, at which

he was represented by counsel. The village council affirmed its June 1996 vote to

terminate plaintiff. Plaintiff does not contend that the post-termination hearing

violated his due process rights.

      Defendants moved for judgment on the pleadings under Rule 12(c). The

district court granted the motion. The district court held that plaintiff could not

assert a First Amendment claim because the political sign was his mother’s


                                          -6-
political speech, not his. With respect to plaintiff’s procedural due process claim,

the district court held that plaintiff did have a property interest in his job because

he had passed the Academy training in June 1996 and, therefore, was a regular,

full-time employee at the time he was terminated. However, the district court

held that plaintiff knew in February that his employment as a police officer was

in jeopardy because of his failure to pass the Academy training, and that this

knowledge constituted prior notice of possible termination when the credit card

discussion took place later in March 1996, relying on the mistaken allegation,

corrected by both parties in their Rule 12(c) pleadings, that the credit card

discussion took place in March. The district court also concluded that plaintiff

had explained his credit card use at the “March” meeting, and, thus, had a full

opportunity to explain his side of the story. The district court held the “March”

meeting was, as a matter of law, a sufficient pretermination hearing because

plaintiff had received both prior notice and an opportunity to present his side of

the story.


                                    III. Analysis.

                             A. First Amendment Claim.

      Plaintiff argues that he was fired in retaliation for the political sign his

mother placed in her yard supporting defendant Trujillo’s opponent. However, as

the district court recognized, the sign was his mother’s political speech, not

                                          -7-
plaintiff’s. Ordinarily, litigants must assert their own legal rights and interests,

and cannot rest their claims on the legal rights or interests of third parties. See,

e.g., Secretary of State of Md. v. Joseph H. Munson Co.     , 467 U.S. 947, 955

(1984) (citing Warth v. Seldin, 422 U.S. 490, 499 (1975)); Archuleta v. McShan,

897 F.2d 495, 497 (10th Cir. 1990) (holding that § 1983 claims must be based on

the violation of the plaintiff’s personal rights, not the rights of someone else).

      Plaintiff argues that he suffered injury because defendants retaliated against

him for his mother’s speech and that such retaliation has a chilling effect on free

speech. The Supreme Court has recognized limited circumstances in which

plaintiffs may assert the free speech rights of another person, in part because

of policy considerations relating to potential chilling effects on the free speech

rights of others. 3 However, plaintiff’s complaint does not plead any such

circumstances in this case. See Phelps v. Hamilton, 122 F.3d 1309, 1326

(10th Cir. 1997) (standing cannot be inferred argumentatively from averments in



3
        The Supreme Court has recognized limited circumstances in which a
litigant may bring a First Amendment action on behalf of third parties where the
litigant is making a facial challenge to a statute that inhibits others from engaging
in protected speech if the litigant suffered an “injury in fact.”     See, e.g. , Virginia
v. American Booksellers Ass’n , 484 U.S. 383, 392-93 (1988) (injury in fact and
facially broad statute may cause others to refrain from free speech);       Secretary of
State of Md. v. Joseph H. Munson Co. , 467 U.S. 947, 956-58 (1984) (over broad
statute, third party suffered injury in fact and can be expected to properly frame
the issue and present it with adversarial zeal).


                                           -8-
the pleadings). Thus, the district court did not err in dismissing plaintiff’s First

Amendment claim.


                         B. Procedural Due Process Claim.

                      1. Adequacy of Pretermination Process.

      It is well established that due process requires that a public employee with

a property interest in continued employment is entitled to “oral or written notice

of the charges against him, an explanation of the employer’s evidence, and an

opportunity to present his side of the story” before he is terminated. Loudermill,

470 U.S. at 546. Defendants do not dispute the district court’s conclusion that

plaintiff had a protected property interest in continued employment with the

village, or its conclusion that they were not entitled to qualified immunity.

      The purpose of the pretermination hearing is to serve as “an initial check

against mistaken decisions -- essentially, a determination of whether there are

reasonable grounds to believe that the charges against the employee are true and

support the proposed action.” Id. at 545-46. The due process clause does not

require an “elaborate” or formal pre-termination hearing, and the hearing need

not “definitively resolve the propriety of the discharge.” Id. at 545. All that is

required is “notice and an opportunity to respond.” Id. at 546. We have held,

however, that “implicit in the notice and opportunity to be heard elements is the



                                          -9-
requirement that the employee be made aware that his employment is in jeopardy

of termination.”   Calhoun v. Gaines , 982 F.2d 1470, 1476 (10th Cir. 1992).

      Plaintiff acknowledges that he was questioned about his credit card use at

the February council meeting; thus, defendants argue that the February meeting

constituted his pretermination notice because he had an opportunity to be heard.

However, according to the complaint, plaintiff never knew that his job was in

jeopardy because of his mistaken credit card charges. Thus, when his credit card

use was discussed, plaintiff did not know that the village council was considering

termination based upon that ground.

      The district court concluded that because plaintiff knew his job was in

jeopardy as a result of his failure to pass the Academy training, he must have

known his job was further jeopardized because of the credit card misuse.      The

district court stated that plaintiff “knew the March meeting was a ‘special

meeting’ called to review the Trustees’ decision to allow him another opportunity

to pass the certification process because of serious charges of unauthorized credit

card use,” R. at 72, and that plaintiff “cannot dispute that he was independently

aware that the March meeting was called for the specific purpose of deciding his

employment fate,” id. at 73. Because both sides agreed in their Rule 12(c)

pleadings there had been only the February meeting, the record does not support

the district court’s conclusion that plaintiff knew the nonexistent subsequent


                                          -10-
meeting had been called to reconsider the February vote in light of the credit card

issue. Further, nothing in the record supports the district court’s conclusion that

plaintiff had any actual or constructive knowledge that any council discussion of

his credit card use related to his continued employment. The district court’s

conclusions were based on mere inference, and ignore plaintiff’s assertion that he

did not know his job was in jeopardy because of the credit card misuse. Thus,

the district court failed to accept all the well-pleaded allegations of the complaint

as true and to construe them in the light most favorable to the plaintiff.   See

Coosewoon , 25 F.3d at 924.      The district court also concluded that plaintiff had

“fully explained” his credit card use at the council meeting and, therefore, had a

full opportunity to be heard under Loudermill. R. at 72. This conclusion is not

borne out by the pleadings. Plaintiff’s complaint states only that he discussed his

credit card use with the council, see R. at 7, not that he “fully” explained his side

of the story in response to any notice on his part that his employment was in

jeopardy. When applying Calhoun to the facts pled, plaintiff did not receive

adequate notice or an opportunity to be heard. Therefore, the district court erred

in concluding that the February meeting constituted a constitutionally adequate

pretermination hearing as a matter of law. 4


4
      Plaintiff also argues that, if the February meeting is held to constitute his
pretermination hearing, it was inadequate because he did not receive advance
                                                                       (continued...)

                                            -11-
                          2. Effect of Post-termination Hearing.

         Defendants argue on appeal that plaintiff had at least minimal

pretermination due process     because he had contemporaneous notice of the charges

and an opportunity to explain his side of the story at the February meeting; thus,

because plaintiff received a full post-termination hearing, he received all the

process to which he was entitled. It is true that the adequacy of pretermination

procedures must be examined in light of available post-termination procedures.

See Langley v. Adams County , 987 F.2d 1473, 1480 (10th Cir. 1993);       Benavidez

v. City of Albuquerque , 101 F.3d 620, 626 (10th Cir. 1996) (“[w]hen the

pre-termination process offers little or no opportunity for the employee to present

his side of the case, the procedures in the post-termination hearing become much

more important.”).

         However, Loudermill holds that a post-termination hearing alone is

ordinarily insufficient to satisfy the requirements of due process. 470 U.S.

at 544-45. At this stage of the proceedings, on the facts alleged, it is questionable



4
    (...continued)
    notice of the charges against him; that is, he was not told there would be any
    questions about his credit card use until the meeting, which was ostensibly called
    only for the purpose of considering whether to terminate him because of his
    failure to pass the initial Academy training. However, we have held that
    Loudermill does not require pre-notification notice, and that there need not be any
    delay between the “notice” and the “opportunity to be heard.”     See Powell v.
    Mikulecky , 891 F.2d 1454, 1459 (10th Cir. 1989).

                                           -12-
whether plaintiff received   any pretermination hearing with respect to his credit

card use. As noted above, plaintiff was never told his job was in jeopardy because

of his credit card charges. Further, any questions about his card use appeared fully

resolved. At the conclusion of the February meeting, the council voted to allow

plaintiff to remain a police officer and gave him a second chance to obtain

Academy certification. Plaintiff was allowed to reimburse the village for the

mistaken credit card charges, he satisfactorily repaid the village for the charges,

was reissued another village credit card and was aware of no effect on his

continued employment based on the credit card charges. Then, without prior

notice, plaintiff was terminated because of the unauthorized charges four months

after the February meeting. Given these facts, we think it at least a question of

fact whether the discussion held four months prior to plaintiff’s termination could

be considered a pretermination hearing with respect to his credit card use. See

Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (stating that the fundamental

requirement of due process is the opportunity to be heard at a meaningful time and

in a meaningful manner). Judgment on the pleadings is not appropriate where

there are unresolved material issues of fact. Here, whether plaintiff received an

adequate pretermination notice turns on the factual context and content of the

hearing, the actions of the parties following the hearing and whether plaintiff was




                                          -13-
ever made aware that his job with the police department was in jeopardy because

of his mistaken card use.

      The defendants next rely upon a line of Supreme Court cases recognizing

certain circumstances in which a full post-deprivation hearing alone is held to

satisfy the due process clause. In Parratt v. Taylor, 451 U.S. 527, 539-41 (1981)

overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 330 (1986), and

its progeny, Hudson v. Palmer, 468 U.S. 517, 533 (1984), the Supreme Court held

that due process did not require predeprivation hearings where there is a need for

quick action or where the deprivation is the result of a random and unauthorized

act. In circumstances where a predeprivation proceeding is impossible or

impracticable, all that due process requires, the Court said, is a post-deprivation

“means of redress for property deprivations satisfy[ing] the requirements of

procedural due process.” Parratt, 451 U.S. at 537; accord Hudson, 468 U.S.

at 533. The Court reasoned that post-deprivation remedies satisfy due process in

such cases because, “when deprivations of property are effected through random

and unauthorized conduct of a state employee, predeprivation procedures are

simply ‘impracticable’ since the state cannot know when such deprivations will

occur.” Hudson, 468 U.S. at 533.

      Defendants argue that, if we conclude plaintiff did not receive an adequate

pretermination hearing, we can, nevertheless affirm under Parratt and Hudson,


                                         -14-
because the action of the village council in terminating plaintiff without an

adequate pretermination hearing was not authorized by the village and was

a random, unpredictable event; therefore, the post-termination hearing was all

that was necessary to satisfy due process. We disagree.

      The Supreme Court has explained that “      Parratt and Hudson represent

a special case . . . in which postdeprivation tort remedies are all the process that

is due, simply because they are the only remedies the State could be expected to

provide.” Zinermon v. Burch , 494 U.S. 113, 128 (1990). The Court made clear

that an adequate post-deprivation remedy is a defense to a § 1983 due process

claim only where the deprivation is unpredictable, or random and unauthorized.

Id. at 136-38. “In situations where the State feasibly can provide a predeprivation

hearing before taking property, it generally must do so regardless of the adequacy

of a postdeprivation tort remedy to compensate for the taking.”    Zinermon ,

494 U.S. at 132.

      Here, there is no evidence that quick action was necessary, that plaintiff’s

termination was random or unauthorized, or that pretermination process was

impracticable or impossible. Clearly, the actions of the defendant trustees and

defendant Guilez were neither random nor unforeseeable. These defendants

cannot claim plaintiff’s termination was unpredictable to them: plaintiff alleges

that defendant Guilez requested the council to terminate plaintiff, and that the


                                           -15-
defendant trustees considered and voted on his termination at a regularly scheduled

council meeting. These defendants could certainly foresee that they were

terminating plaintiff and could prevent a wrongful termination by giving him

notice and opportunity to be heard prior to his termination. Defendants state that

the village did not authorize its agents to terminate plaintiff in violation of

established procedure, in essence arguing that the actions of the defendant trustees

were unauthorized. There is no evidence in the record at this stage of the

proceedings suggesting that the village had not delegated to the defendant trustees,

as members of the village council, “the power and authority to effect the very

deprivation complained of here,” id. at 138, that is, the power to terminate

plaintiff’s employment. Therefore, their conduct was not “unauthorized” in the

sense that the term is used in Parratt and Hudson. Id. at 138. When defendants

are the individuals charged with ensuring that proper procedures are followed,

and those same defendants “fail to provide constitutionally required procedural

safeguards to a person whom they deprive of liberty [or property], the state

officials cannot then escape liability by invoking Parratt and Hudson.” Id. at 135.

      In summary, we conclude the district court’s Rule 12(c) dismissal of

plaintiff’s procedural due process claim under § 1983 was erroneous, and that

claim must be remanded for further proceedings consistent with this opinion, but




                                          -16-
we conclude that plaintiff’s First Amendment claim under § 1983 was properly

dismissed.

      AFFIRMED in part, REVERSED in part, and REMANDED for further

proceedings.



                                                 Entered for the Court



                                                 Mary Beck Briscoe
                                                 Circuit Judge




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