Kling v. Valdez ( 1996 )

UNITED STATES COURT OF APPEALS
Filed 4/25/96
TENTH CIRCUIT
CHARLES TIMOTHY KLING,
Plaintiff-Appellant,
vs. No. 95-2131
(D.C. No. CIV 94-618-M)
G. GREG VALDEZ, Individually and in (D.N.M.)
his official capacity as Third Judicial
District Attorney; RAMON ACOSTA,
Individually and in his capacity as an
employee of the Third Judicial District
Attorney,
Defendants-Appellees.
ORDER AND JUDGMENT*
Before PORFILIO, McKAY, and KELLY, Circuit Judges.**
Mr. Kling appeals from a summary judgment entered in favor of Defendants-
Appellees on his civil rights and state law claims in connection with his termination as an
investigator. Although he was ordered reinstated and awarded back pay in a state post-
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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 the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.
termination proceeding, he contends that qualified immunity for the Defendants was
improper and that his First Amendment claim alleging termination due to political activity
should have gone forward. Our review of these legal issues is de novo.
Mr. Kling cannot assert a constitutional right for deprivation of substantive or
procedural due process under our precedent given the remedies afforded him. See
Workman v. Jordan, 32 F.3d 475, 479 (10th Cir. 1994), cert. denied, 115 S. Ct. 1357(1995); Archuleta v. Colorado Dep’t of Institutions, 936 F.2d 483, 489-90 (10th Cir.
1991). Therefore, qualified immunity was properly granted. See Siegert v. Gilley, 500
U.S. 226, 232-33 (1991). While we may agree that a state post-deprivation remedy does
not necessarily foreclose a First Amendment retaliation claim, cf. Williams v. St. Louis
County, 812 F.2d 1079, 1081 n.3 (8th Cir. 1987), it is unlikely that the complaint
envisioned an independent First Amendment claim. Be that as it may, Plaintiff’s response
to the Defendants’ motion for summary judgment was wholly inadequate to preclude
summary judgment on such a claim, consisting of references to allegations contained in
the complaint. See III R. doc. 40 at 3-6. Fed. R. Civ. P. 56(e); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248-49 (1986). Plaintiff was required to come forth with
evidence; Defendants were not required to negate the allegations. See Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986).
AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
-2-
Paul J. Kelly, Jr.
Circuit Judge
-3-