Sanchez v. Smith ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 9 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
DOROTHY SANCHEZ, individually
and as next friend of Lisa Sanchez,
Plaintiff-Appellant,
v. No. 98-2159
(D.C. No. CIV 96-934)
GILBERT BACA, Captain; (D. N.M.)
NEW MEXICO DEPARTMENT
OF PUBLIC SAFETY; SELMINO
RAEL, President, New Mexico
Highlands University; MARGARET
GARZA, DR.; GARY SMITH,
Lieutenant; WILTON ROGERS;
NEW MEXICO HIGHLANDS
UNIVERSITY,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before TACHA , BARRETT , and MURPHY , 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This order and judgment is not binding precedent, except under the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(G). The case is therefore
ordered submitted without oral argument.
Plaintiff Dorothy Sanchez, individually and as next friend of her daughter
Lisa Sanchez, appeals from the order of the district court granting defendants ’
motions for summary judgment and denying her motion for summary judgment
against defendant Gary Smith. We affirm.
Sanchez had been the director of student support services at New Mexico
Highlands University (NMHU) for twenty-four years. She administered a
program designed to assist first generation college students who were
predominantly Hispanic. She was employed on a year to year contract.
In April 1996, a racially inflammatory flyer, “El Nuevo Mexicano,” was
circulated on campus. The New Mexico State Police, in conjunction with the
New Mexico Department of Public Safety (collectively “NMDPS defendants” ),
began an investigation at the request of NMHU officials because the flyer
threatened death and violence against certain faculty and administrative
personnel.
In the course of this investigation, the police learned that Sanchez might be
using NMHU equipment in her home, which was against NMHU policy. The
-2-
police obtained three search warrants which resulted in one search of Sanchez’
office and two searches of her home. Some equipment was found in her home.
Falsified federal financial aid records and other official NMHU documents were
found in her office as well as multiple copies of the hate flyer. According to
defendants , this matter remains under investigation by both state and federal law
enforcement officials. After the equipment was found in her home, the NMHU
defendants placed Sanchez on suspension with pay and later gave her notice that
her contract would not be renewed for the 1996-97 school year.
Sanchez then commenced this action in which she raised twenty-two
claims, apparently under 42 U.S.C. § 1983, Title VII, and various state laws. She
raised Fourth Amendment illegal search and seizure claims against the NMDPS
defendants . She alleged the NMHU defendants violated her rights by suspending
her with pay and by later not renewing her contract without proper due process
procedures. She also alleged her liberty and First Amendment rights were
violated. Sanchez raised claims on behalf of her daughter against the NMDPS
defendants alleging Fourth Amendment search and seizure violations during the
first search, when her daughter was home.
The district court dismissed Sanchez’ claims brought against the NMDPS
defendants pursuant to the Fifth Amendment and her claims for abuse of process
and malicious prosecution. Sanchez does not appeal this order. The court also
-3-
granted all defendants ’ motions for summary judgment and denied her motion for
summary judgment against defendant Lt. Gary Smith.
On appeal, Sanchez argues that her motion for summary judgment should
have been granted. She also contends her Fourth Amendment rights were violated
by the searches as defendants had no probable cause for any of the searches, the
searches were pretexual, and the first warrant was unreasonable. She states that
the NMHU defendants conspired with the NMDPS defendants , violated her
Fourth Amendment rights by searching her office, and violated her property right
in continued employment, her First Amendment rights of free speech and
association, and her liberty interests.
“We review the entry of summary judgment de novo, drawing all
reasonable inferences in favor of the nonmovants.” Hulsey v. Kmart, Inc., 43
F.3d 555, 557 (10th Cir. 1994). The moving party must show there is no genuine
issue as to any material fact and it is entitled to judgment as a matter of law. See
id. The nonmovant must establish, at a minimum, an inference of the presence of
each element essential to the case. See id.Sanchez asserts the NMDPS defendants violated the Fourth Amendment in
searching her home twice and her office once. The first search of her home
appears to have been the result of Lt. Smith’s conversation with several people
about the threatening flyer, which first brought police presence to the campus at
-4-
the administration’s request. While speaking with Sanchez’ secretary, Lt. Smith
learned that Sanchez had taken some state property, including a computer,
recorder, and associated items home and that she was performing hypnotherapy at
her home as she had been told not to do it on campus. Lt. Smith verified that
Sanchez did not have permission to take the equipment home. University officials
then went to Sanchez’ office, without police presence, to see if the equipment was
there. It was not. Some NMHU equipment was found in Sanchez’ home as a
result of the search and she was suspended with pay.
The second search warrant was issued for Sanchez’ office. Lt. Smith had
learned through interviews with various individuals, including Sanchez’ secretary,
that Sanchez had been altering documents, including W-2 forms and tax returns,
apparently to qualify first generation students for scholarships when their family
income was too high. The search warrant was issued to find those altered
documents.
During the execution of the second search warrant, a large number of
copies of the hate flyer was discovered and Lt. Smith sought another search
warrant for Sanchez’ home to look for threatening letters. Lt. Smith also had
information that Sanchez may have been involved in distributing the flyer as 500
copies were unaccounted for on her copy card and students had been seen using
that card to copy the flyer.
-5-
We review the sufficiency of the affidavit upon which a warrant is issued
by looking at the totality of the circumstances and simply ensuring “that the
magistrate had a substantial basis for concluding that probable cause existed.”
Illinois v. Gates , 462 U.S. 213, 238-39 (1983) (quotation omitted). Probable
cause means that “there is a fair probability that contraband or evidence of a
crime will be found in a particular place.” Id. at 238.
We have reviewed the supporting affidavits contained in the appendix and
conclude that each affidavit provided the magistrate with a substantial basis for
concluding probable cause existed to justify the issuance of the warrants. Further,
Sanchez has failed to show that the searches exceeded the warrants.
Sanchez has two main claims against the NMHU defendants. One is based
on her suspension with pay and non-renewal of her employment contract.
“Suspension with pay does not raise due process concerns.” See Hicks v. City of
Watonga , 942 F.2d 737, 746 n.4 (10th Cir. 1991) (citing Cleveland Bd. of Educ.
v. Loudermill , 470 U.S. 532, 544-45 (1985); Pitts v. Board of Educ. of U.S.D.
305 , 869 F.2d 555, 556 (10th Cir. 1989)). No due process or liberty interests
violations occurred due to Sanchez’ suspension with pay.
Sanchez was employed pursuant to a year-to-year contract. That contract
was not renewed. Sanchez has failed to show that she had a constitutionally
protected property interest in her continued employment. “[A] nontenured school
-6-
district employee ‘must have more than a unilateral expectation [of continued
employment]. He must, instead, have a legitimate claim of entitlement to it.’”
Sullivan v. School Bd. of Pinellas County , 773 F.2d 1182 , 1185 (11th Cir. 1985)
(quoting Board of Regents of State Colleges v. Roth , 408 U.S. 564, 577 (1972)).
In Sullivan , the court concluded that a teacher with a long employment history
with the school may, under certain circumstances, have a legitimate claim to job
tenure under certain circumstances.
Sanchez has not shown any such expectation. She therefore had no
protected property interest in her continued employment, nor has she shown any
mutually explicit understanding sufficient to create such an interest.
Secondly, Sanchez alleged that the NMHU defendants violated her liberty
and First Amendment rights because her suspension was in retaliation for her
speech on matters of public interest. Sanchez did not identify the incidents to
which she was referring, but apparently some occurred after she filed the lawsuit
and were added to her amended complaint. These comments cannot support a
claim of retaliation occurring before the comments were made.
Sanchez’ other allegations are vague. She stated that she was not offered
the opportunity to clear her name prior to her suspension and that she was
suspended “in retaliation for her association and speech on matters of public
interest concerning University administration.” App., Vol. 1 at 18. Later, she
-7-
mentions flyers that were critical of the NMHU president and suspicions that she
may have been involved with them. None of these conclusory accusations is
sufficient to state a viable claim.
The remainder of Sanchez’ claims arise out of these three main issues. She
raised claims of trespass, conversion, a property right in the computer equipment
as her personal items were on it, and Fourth Amendment violations on behalf of
her daughter who was at home asleep during the first search. She has not stated
any viable claim.
We have reviewed the parties’ briefs, the appendices, and the district
court’s oral explanation of its judgment and its opinion. We conclude that the
district court properly granted defendants ’ motion for summary judgment and
denied Sanchez’ motion for summary judgment. The judgment of the United
States District Court for the District of New Mexico is AFFIRMED.
Entered for the Court
James E. Barrett
Senior Circuit Judge
-8-