* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court (continued...) 

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 2 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

G. GREG VALDEZ,

Plaintiff-Appellant,

v. STATE OF NEW MEXICO; CITY OF 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. No. 03-2187 (D.C. No. CIV-02-94 JC/KBM)

(D. N.M.)

ORDER AND JUDGMENT ** (...continued)

generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** The Honorable Robin J. Cauthron, Chief District Jud ge, United States District Court for the Western District of Oklahoma , sitting by designation. -2- Before TACHA , Chief Judge, MURPHY , Circuit Judge, and CAUTHRON , ** Chief District Judge.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision 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 pre judice, under Federal Rule of Civil Procedure 12(b)(6), and dismissal of his stat e 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 t he Third Judicial District, New Mexico, and defendant Susana Martinez, the curr ent district attorney, have engaged in a long-standing rivalry, attributable to political, professional, and1 The controlling allegations are set out in plaintif f’s Second Amended Complaint, Aplt. App. at 24-42. -3- employment-related differences. According to the a llegations in plaintiff’s complaint, Martinez mobilized the individual defend ants and various law enforcement agencies to carry out a civil-rights co nspiracy against him, “designed to . . . place plaintiff in a bad public light so t hat 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’ act ions: (1) violated his Fourth Amendment right to be free from illegal sear ch 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 particip ate in government and politics.” Id. at 35-36, ¶ 51. In addition, the complaint allege d 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 setof facts in support of the claims that would entitle him to relief, accepting the wel l-pleaded allegations of the2 As a threshold matter, we determine that plaintiff’s complaint alleged

sufficient facts to demonstrate standing to raise h is 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 Art icle III standing: injury-in-fact, causation, and redressability). -4- 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 c itations 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 fr ee 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 Octob er 1999, this order and judgment discusses each of plaintiff’s federal clai ms 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 p laintiff. Defendants placed two undercover informants in the bar owned by the G onzaleses, with instructions-5-

to describe two television sets as stolen and to of fer 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 investigati on, purchased the televisions. Before the Gonzaleses received the televisions, pla intiff asked Mike Gonzales Sr. for information on renting a large-screen televisio n for a planned Super Bowl party. Gonzales offered to lend one of the televis ions to plaintiff, who accepted the offer. The informants delivered the televisionto plaintiff’s home for use at his party. Based on these circumstances, plaintiff asserts a c laim of illegal search and seizure. He argues that a search occurred “when th e informants crossed the threshold of his premises,” delivered the televisio n, and therefore learned that the allegedly-stolen television was in his home. Howev er, a wrongful search or seizure conducted by a private party does not violate the Fourth Amendment. And an informant working for law enforcement author ities 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-6-

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 per formed 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 kn owledge of, law-enforcement officials. It simply states that informants offere d the televisions for sale, the Gonzaleses purchased the televisions, the senior Go nzales offered to lend a television to plaintiff, and “the informants themse lves delivered the TV to Plaintiff’s residence,” Aplt. App. at 31, ¶¶ 31. F rom 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 h ome, 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-7-

state a violation of the Fourth Amendment. The dis trict 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 b usiness attorney,” retained “for representation on various business, civil and otherlegal matters.” Aplt. App. at 31, ¶ 34. Upon learning of the arrests, plainti ff went to the police station, intending to provide the Gonzaleses with legal coun sel. Defendants, based on their assertion that plaintiff was implicated in th e crime underlying the charges against the Gonzaleses, obtained an order from a ma gistrate judge prohibiting plaintiff from speaking to them. When denied acces s to the Gonzaleses, plaintiff attempted to obtain a telephonic order from a distr ict 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 con ference to announce the arrest of the Gonzaleses. In response to a questio n, she stated that she had not decided whether or not to criminally indict plainti ff. On the following day, Martinez allegedly commented to a reporter that pla intiff was accused of knowingly receiving stolen property. The reporter did not publish the comment.-8-

Subsequently, Martinez’s office issued a criminal c omplaint that did not name plaintiff as a defendant, but did allege his receip t of a planted television set. Although plaintiff’s argument on his federal contra ct claim is not entirely clear, he appears to assert a violation of his cons titutional right to substantive due process. He maintains that defendants directly int erfered with an on-going professional relationship with the Gonzaleses and i ndirectly 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 malici ously revoked or suspended. See Goulding v. Feinglass , 811 F.2d 1099, 1102-03 (7th Cir. 1987) (finding n o allegation amounting to a deprivation of a liberty or property interest where an attorney’s rights were not “removed or significantl y altered”). The Due Process Clause is not “a font of tort law t o 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 Clau se of the Fourteenth Amendment . . . does not transform every tort commi tted by a state actor into a constitutional violation”). To make out a substantive due process claim, “a plaintiff must demonstrate a degree of outrageou sness and a magnitude of potential or actual harm that is trulyconscience-9-

shocking. . . . The level of conduct required to s atisfy this additional requirement cannot precisely be defined, but must n ecessarily 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) (citation s and quotations omitted). In making that determination, we conside r “(1) the need for restraint in defining the scope of substantive due process claim s; (2) the concern that § 1983 not replace state tort law; and (3) the need for de ference to local policymaking bodies in making decisions impacting public safety.” Id. at 1184. Our review of the allegations in plaintiff’s compla int in light of the relevant three factors leads us to conclude that itdoes not allege an actionable substantive due process violation. Neither the dis ruption of a continued attorney-client relationship with the Gonzaleses no r 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 c onstitutional principles for vindication. Dismissal was the appropriate disposi tion of plaintiff’s federal contract claim.3 In addition, there is no need to resolve the partie s’ argument concerning

whether plaintiff is a public figure who may not re cover damages for false and defamatory statements without demonstrating that th e 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 pu blic-figure status), cert. denied , 124 S. Ct. 1507 (2004). -10- Constitutional Defamation Claim Plaintiff’s federal defamation claim has much in co mmon 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 depriv ation 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 cons titution, the defamatory statements (1) “must impugn the good name, reputati on, 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 meetthe 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-11-

“a liberty interest in his good name and reputationas 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 retaine d to represent the Gonzaleses on criminal matters. Even in his appell ate brief, he argues only that “[a]s a former district attorney . . . [he] would h ave been the most obvious choice [of] his ‘long-time client.’” Aplt. Br. at 14. Fu rther, he alleges no other specific employment opportunities lost as the result of Mart inez’s statements. Any damage to plaintiff’s reputation “‘may be recoverab le 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 wi th the political party of his choice and to assemble with others who supported [p laintiff] in running against-12-

Martinez for the office of district attorney.” Apl t. Br. at 28. The First Amendment protects the right to associate for the p urpose of engaging in speech, assembly, petition for the redress of grievances, and the exercise of religion. “[W]hen the State interferes with individuals’ sele ction of those with whom they wish to join in a common endeavor, freedom of assoc iation . . . 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 Amendm ent rights, the defendant’s action must have had a deterrent, or ‘c hilling’ 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 c hilling 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 th e Constitution.” Id. Because public debate is “rough and tumble,” plaintiffs “ar e expected to cure most misperceptions about themselves through their own s peech 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 omitt ed)).-13-

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 sher iff deprived them of their free speech rights by running criminal history checks onthem when they attempted to remove him from office through the electoral proces s. 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 cond uct.” Id. (quoting Phelan , 235 F.3d at 1248). We ultimately determined that t he organizers’ allegations did not state a violation of their constitutional right s. Similarly, we hold here that plaintiff has failed t o state a claim of First Amendment retaliation. Plaintiff’s allegations con cerning the delivery of the television set, the prohibition of contact with the Gonzaleses, the press conference reference to his possible connection with the rever se sting, the comment to the reporter, and the criminal complaint’s mention of h is name do not meet the subjective standard for a chilling effect. Plainti ff remained free to express his version of events, either in a political campaign o r in contacts with the press. Indeed, plaintiff “had several telephone conversati ons with the reporter” who was supposedly told that plaintiff was accused of a cri me. Aplt. App. at 33, ¶ 41.4 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 di scern no distinction between the two claims and conclude that plaintiff has not stated a First Amendment claim in any context. -14- In sum, plaintiff has not stated a claim that wouldsupport 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 suffici ent to show both a conspiracy and the actual deprivation of a federally protected rig ht. Dixon v. City of Lawton , 898 F.2d 1443, 1449 (10th Cir. 1990). Because we h ave concluded that plaintiff has not successfully pleaded the violation of a fed eral 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, Mart inez’s entitlement to absolute immunity, and the municipality’s liability. In add ressing qualified immunity issues, the court must first consider whether the p laintiff alleged a deprivation of an actual constitutional right and, if so, whether the plaintiff showed the right was-15-

clearly established at the time of the alleged viol ation. 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 ent itlement to absolute immunity for various alleged offenses and we do not separate ly analyze the liability of the municipality. The judgment of the district court is AFFIRMED.

Entered for the Court

Robin J. Cauthron Chief District Judge