MOONGATE WATER COMPANY, INC., Louis A. Gariano, Thelma O. Gariano, and Jeffrey Gariano, Plaintiffs-Appellants, v. The STATE of New Mexico, New Mexico Environment Department, New Mexico Environmental Improvement Division, Gabriel Garcia, individually, Oscar Simpson, individually, Kathleen Sisneros, individually, and Judith M. Espinosa, individually, Defendants-Appellees.
No. 15060.
Court of Appeals of New Mexico.
June 30, 1995.
Certiorari Denied Aug. 14, 1995.
902 P.2d 554
ly. While the Estate may be more immediately affected by the regulation, the use restriction is of general application and is thus a damage of the same kind as that suffered by the public in general. Because the Estate has not shown how it has suffered any special harm not suffered by the public in general, it cannot make a claim for damages under Article II, Section 20.
17. Other methods of redress. The Court of Appeals opinion remanded this case to the district court “to consider whether there remain any alternative legal and factual grounds in support of [the Estate‘s] first claim.” The County has not requested review of this part of the Court of Appeals’ ruling. We therefore will not disturb it.
18. Conclusion. We reverse the Court of Appeals on the inverse condemnation claim and direct the district court to dismiss that claim. We remand this case for consideration of the Estate‘s claim to other remedies to which it may be entitled if it can show that the County‘s action was improper.
19. IT IS SO ORDERED.
BACA, C.J., and FRANCHINI, J., concur.
Tom Udall, Attorney General, Christopher D. Coppin, Ass‘t Attorney General, Albuquerque, for defendants-appellees.
OPINION
ALARID, Judge.
Moongate Water Company (Moongate) appeals an order of the district court granting summary judgment in favor of Defendants Garcia, Sisneros, Simpson and Espinosa (Defendants) in the New Mexico Environment Department (Environment Department). We address whether Moongate‘s due process, equal protection, and first amendment rights under the United States Constitution have been violated. Because we find no evidence of a constitutional violation, we affirm.
BACKGROUND
Moongate had made a practice of constructing wells without getting prior state approval, and Gabriel Garcia (Garcia), the District Engineer in Las Cruces for the Environment Department, warned in June 1989 that the state would take action if Moongate continued the practice. Moongate started drilling Well 12 in September 1989 without first obtaining approval from the Environment Department. In response, the Environment Department filed a criminal complaint against Moongate and its President in the Doña Ana Magistrate Court. Before receiving notice of the complaint, but after construction of Well 12, Moongate filed an
As a result оf the charges, Moongate and its president were convicted of a misdemeanor violation in magistrate court. Thereafter, Moongate appealed to district court. The district judge reversed the conviction and stated that this was a “civil matter as to whether approval will be given in the future, and not criminal.”
Before the magistrate court trial, Garcia informed Moongate that since Well 12 had already been constructed, Moongate must file “as-built” plans certified by a registered professional engineer that construction had complied with minimal Environment Department standards. After Moongate filed the plans, Garcia pointed out deficiencies in Moongate‘s application and requested more information. When Moongate resubmitted the application, Garcia was suspicious about the change in as-built plans to conform with regulations. For example, when informed that grout depth must be at least twenty feet, the resubmitted plans indicated that the grout depth for Well 12 was indeed twenty-one feet, whereas the previous grout depth indicated for the already constructed well was fifteen feet.
More than nine months after the reversal Garcia wrote to Kathleen Sisneros (Sisneros), Director of the Water and Waste Management Division of the Environment Department, to evaluate the growing problem with Moongate. Sisneros informed Moongate that Well 12 could be used if Moongate met certain conditions, including installation of a disinfection system. Moongаte rejected this proposal.
Garcia also found deficiencies in Moongate‘s applications for construction of Wells 13 and 14. Garcia informed Moongate that the Environment Department would approve revised applications for Wells 13 and 14 under certain detailed conditions. Garcia and the Environment Department claim here that the applications did not comply with recommended standards for construction. They further claim, despite Moongate‘s allegаtions to the contrary, that conditional approval was not intended as a retaliatory attack against Moongate for successfully appealing the criminal misdemeanor conviction.
In February 1992, after this suit was filed, Moongate entered the Environmental Improvement Agency Excellence Awards competition sponsored by the United States Environmental Protection Agency (EPA). Moongate filed its entry for the competition with the Environment Department. Apparently, it was routine praсtice for the Environment Department to automatically recommend the entries it received for a water quality award. Moongate‘s entry, however, was forwarded to the EPA by Oscar Simpson (Simpson) and Sisneros without recommendation, based on the advice of the Environment Department‘s legal counsel. Moongate claims in its complaint that the Environment Department‘s failure to nominate it resulted in the EPA not selecting a winner in the category in which Moongate was the only entrant.
Moongate also alleges that Garcia and the other Defendants in this case retaliated against it for the exercise of its constitutional rights by appealing the magistrate conviction. Garcia swore that he followed Environment Department procedure in his actions toward Moongate‘s well applications, but procedures had not been previously enforced. Based on their alleged retaliatory actions, Moongate sued Defendants Garcia, Sisneros, Simpson, and Judith Espinosa (the Secretary of the Environment Department who had general supervisory authority over the other Defendants) in their official and individual capacities under
Because this case involves a challenge to the implementation of regulations governing the well application process in New Mexico, we shall briefly describe that regulatory process. The Environment Department is charged with enforcing the provisions of the Environmental Improvement Act,
Pursuant to its authority to promulgate regulations and standards for water supply systems in
DISCUSSION
We begin by discussing the difference between an official and an individual capacity suit. In a successful individual capacity suit, personal liability would be imposed on a public official for his or her unlawful actions taken “under color of state law.” Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985). Whereas, in an official capacity suit, the public official is considered an agent of the public entity and any liability would be imposed on the entity itself. Id. at 165-66, 105 S.Ct. at 3104-05; see also Ford v. New Mexico Dep‘t of Pub. Safety, 119 N.M. 405, 410-11, 891 P.2d 546, 551-52 (Ct.App.1994), cert. denied, 119 N.M. 354, 890 P.2d 807 (1995) (discusses distinction between official and individual capacities in civil rights litigation). At any rate, we need not address the distinctions between the two types of suits because we find that Moongate‘s constitutional claims lack merit under either type, as discussed below.
Defendants moved for summary judgment on Counts I, II, IV, and V of Moongate‘s second amended complaint. The trial court granted summary judgment in favor of all individual Defendants. In reviewing an order granting summary judgment, we consider the evidence in the light most favorable to the non-movant. Eavenson v. Lewis Means, Inc., 105 N.M. 161, 162, 730 P.2d 464, 465 (1986). Summary judgment is appropriate when there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Roth v. Thompson, 113 N.M. 331, 334, 825 P.2d 1241, 1244 (1992). Defendants need only make a prima facie showing that they are entitled to summary judgment; thereafter the burden shifts to Moongate to show specific evidentiary facts exist which require a trial on the merits. Id. at 334-35, 825 P.2d at 1244-45. Moongate may not merely rest on the allegations of the complaint. Dow v. Chilili Coop. Ass‘n, 105 N.M. 52, 55, 728 P.2d 462, 465 (1986).
A. 12 U.S.C. § 1983 CLAIMS
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
To bring a claim under Section 1983, a plaintiff must establish that: (1) the actions
Section 1983 does not itself establish or create any rights, it only authorizes the granting of relief when a claimant demonstrates a violation of rights created by the federal Constitution or statute. Therefore, it is this Court‘s duty to determine whether the constitutional provision in question (the First Amendment, for example) itself encompasses the alleged harm. See 1 Martin A. Schwartz & John E. Kirklin, Section 1983 Litigation: Claims, Defenses, and Fees § 3.4, at 121-23 (2d ed. 1991) [Hereinafter Section 1983 Litigation].
B. DUE PROCESS
“No person shall be ... deprived of life, liberty, or property, without due process of law.”
1. Well Permits
The
Moongate‘s due process claim is not that there was a violation of procedural due process—such as a failure to give proper notice or conduct a fair hearing. Rather, Moongate emphasizes in its brief that its claim is for violation of substantive due process. To prevail on such a claim, however, Moongate must establish that its property interests were injured by governmental action that shocks the conscience. We agree with the First Circuit‘s position that where state officials have “allegedly violated state law or administrative procedures, such violations do not ordinarily rise to the level of a constitutional deprivation.” Nestor Colon Medina & Sucesores, Inc. v. Custodio, 964 F.2d 32, 45 (1st Cir.1992) (quoting PFZ Properties, Inc. v. Rodriguez, 928 F.2d 28, 31 (1st Cir.1991), cert. dismissed, 503 U.S. 257, 112 S.Ct. 1151, 117 L.Ed.2d 400 (1992)).
Substantive due process, as a theory for constitutional redress, has in the past fifty years been disfavored, in part because of its virtually standardless reach. To apply it to claims like the present would be to insinuate the oversight and discretion of federal judges into areas traditionally reserved for state and locаl tribunals. Clearly, it is no simple matter to decide what abuses to regard as abuses of “substantive” due process. Every litigant is
Custodio, 964 F.2d at 45. Nothing in the record before us suggests anything that comes close to such abuse.
2. EPA Water Quality Award
Moongate asserts that it had a property interest in the Environment Department‘s recommendation of entrants for the EPA water quality award. However, Moongate‘s assertion is unsupported by legal authority. See, e.g., Martin v. Unified Sch. Dist., 728 F.2d 453, 455-56 (10th Cir.1984) (no property intеrest exists in a renewal of position; negative inference drawn from lack of recommendation is not enough to create a liberty interest); University of Colorado v. Silverman, 192 Colo. 75, 555 P.2d 1155, 1159 (1976) (en banc) (recommendation by committee regarding tenure is advisory only; failure to transmit recommendation is not deprivation of property). The Environment Department did not grant the awards, it merely passed names along to the EPA.
Assuming the Environment Department‘s normal practice was to summarily nominate all applicants for such EPA awards, there is nоthing in the record to indicate that Moongate had a legitimate claim of entitlement to such a nomination. See Edgington v. City of Overland Park, 15 Kan.App.2d 721, 815 P.2d 1116, 1125 (1991) (City Council was free to reject nomination; mere expectation of gaining seat was not protected property or liberty interest); see also Gallegos v. City & County of Denver, 984 F.2d 358, 363 (10th Cir.1993). We therefore affirm summary judgment for Defendants regarding the water quality award.
C. EQUAL PROTECTION
Moongate asserts in Count V of its complaint an Equal Protection argument, claiming that similarly situated entities received different treatment and that Moongate‘s well applications were held to higher standards. No evidence exists on the record, however, to show that other applicants were treated differently than Moongate after the Environment Department started enforcing its own regulations. Moongate merely rests on its allegation of equal protection violations stated in the complaint, which is not enough to defeat summary judgment. Dow, 105 N.M. at 55, 728 P.2d at 465. Because this claim has no merit, we affirm summary judgment in favor of Defendants.
D. FIRST AMENDMENT
Moongate argues thаt Defendants retaliated against it because it appealed the magistrate conviction. Moongate brings an action under Section 1983 contending that it was penalized for exercising its First Amendment right of access to the courts. We disagree.
The right of access to the courts is basic to our system of government and “is subsumed under the [F]irst [A]mendment right to petition the government for redress of grievances.” Soranno‘s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir.1989). Because an individual‘s right of access to the courts is ingrained in the Constitution, state officials “may not take retaliatory action against an individual designed either to punish him for having exercised his constitutional right to seek judicial relief or to intimidate or chill his exercise of that right in the future.” Harrison v. Springdale Water & Sewer Comm‘n, 780 F.2d 1422, 1428 (8th Cir.1986). Thus, “[d]eliberate retaliation by state actors against an individual‘s exercise of this right is actionable under [S]ection 1983.” Morgan, 874 F.2d at 1314; see also Smith v. Maschner, 899 F.2d 940, 947 (10th Cir.1990); 1 Section 1983 Litigation, supra, § 3.14 (Cum.Supp. No. 2, 1993).
Moongate relies on Garcia‘s September 6, 1991, memorandum to Sisneros to show a
While Moongate purports to catalog instances displaying retaliation, it does not identify any specific evidence of improper motive. In fact, the memorandum can easily be construed as representing Garcia‘s frustration with Moongate‘s continued noncompliance with the Regulations and his intent not to allow the practice to continue, as he warned Moongate he would do prior to the initial lawsuit. Moongate‘s briefs ignore the uncontroverted evidence in the record that Garcia and the Envirоnment Department had decided and announced well before Moongate‘s appeal (indeed, even before the criminal complaint was filed against Moongate) that there was going to be rigorous enforcement of the Regulations, including the requirement that wells receive department approval before being constructed. Despite Moongate‘s bald, unsubstantiated allegations to the contrary, the record reveals no post-appeal action by the Environment Department with respect to Moongate‘s wells and proposed wells other than directives to comply with state regulations. Nor is there any substantial evidence to show a retaliatory motive behind the Environment Department‘s decision to forward Moongate‘s application for the EPA water quality award without any recommendation from the department. We note that the forwarding of the application took place after the present lawsuit was brought and Moongatе makes no claim that the Environment Department‘s failure to recommend it for the award was in retaliation for filing this suit. On this record, Moongate‘s retaliation claim cannot withstand a motion for summary judgment.
Given the safety concerns inherent in the Environment Department‘s approval of wells, it was objectively reasonable for Defendants to deny Moongate‘s permit applications. The record is replete with examples of Moongate‘s continued noncompliance with the Regulations. Regardless, Moongate asserts that a retaliation claim involves factual questions as to Defendants’ state of mind and Defendants’ affidavits fail to rebut this allegation of retaliation; therefore, summary judgment is inappropriate on its First Amendment retaliation claim. See Setliff v. Memorial Hosp., 850 F.2d 1384, 1391 (10th Cir.1988). Even viewed in a light most favorable to this contention, however, the record does not provide sufficient evidence for a jury to return a verdict in favor of Moongate. The record reveals nothing more than conclusory allegations of retaliation; therefore summary judgment was appropriate. Id. at 1392.
When considering a summary judgment motion, the trial court must determine whether a jury could return a verdict for the plaintiff on the evidence presented. Smith, 899 F.2d at 949.
Our past cases echo the concern of the Supreme Court that many insubstantial claims should be resolved at the summary judgment stage to avoid excessive disruption of government. In claims involving proof of a state actor‘s subjective intent, more than unsupported allegations of improper intent must be shown.... To survive a summary judgment motion, a plaintiff must point to specific evidence showing the official‘s actions were improperly motivated. In other words, a plaintiff must produce enough evidence to show summary judgment is inappropriate.
Walter v. Morton, 33 F.3d 1240, 1243 (10th Cir.1994) (citations omitted). The Environment Department had the right to enforce valid regulations without fear of litigation. Moongate has not presented any evidence that the Regulations are inappropriate. Defendants furthermore did not exceed the scope of the Regulations; they merely required Moongate to adhere to them.
“There is a clear distinction between the grant of tenure to an employee—a right which cannot be conferred by judicial fiat—and the prohibition of a discharge for a particular impermissible reason.” Rutan v. Republican Party of Illinois, 497 U.S. 62, 81, 110 S.Ct. 2729, 2740, 111 L.Ed.2d 52 (1990) (Stevens, J., concurring) (quoting Illinois State Employees Union v. Lewis, 473 F.2d 561, 568 (7th Cir.1972), cert. denied, 410 U.S. 928, 93 S.Ct. 1364, 35 L.Ed.2d 590 (1973)). Moongate does not present enough evidence regarding retaliatory intent to survive summary judgment. Furthermore, the state has the right to enforce its rules protecting compelling state interests. Summary judgment is affirmed as to Defendants on the retaliation claims.
E. SUPERVISION
Moongate claims that the violation of its rights in the inconsistent treatment of its well applications was thе result of poor Environment Department supervision. Moongate contends that Sisneros’ and Espinosa‘s indifference to the supervisory process violated Section 1983. We disagree.
The concept of respondeat superior is not applicable to Section 1983 cases. Monell v. Department of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). “[E]ach defendant, whether individual or entity, may be held liable only for that defendant‘s own wrongs.” 1 Section 1983 Litigation, supra, § 6.4, at 317. Supervising officers may not be subjected to Section 1983 liability simply by way of their control over subordinates. Id. Moongate has presented no evidence of any independent wrongdoing by either Espinosa оr Sisneros. See Haynesworth v. Miller, 820 F.2d 1245, 1262 (D.C.Cir.1987). Furthermore, as stated above, Moongate‘s constitutional rights were not violated. Therefore summary judgment was appropriate as to Espinosa and Sisneros.
F. QUALIFIED IMMUNITY
Defendants argue that they are entitled to qualified immunity because Moongate has not proved that their conduct violated any clearly established constitutional rights. See Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). For Moongate to defeat Defendants’ qualified immunity, it must specifically show that Defendants: (1) violated a clearly established constitutional right; аnd (2) acted under color of state law. Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 645 (10th Cir.1988). As discussed above, however, Moongate has not shown that its federal rights have been violated. Because we affirm summary judgment in favor of Defendants, we need not address the defense of qualified immunity.
CONCLUSION
“To the victor belong only those spoils that may be constitutionally obtained.” Rutan, 497 U.S. at 64, 110 S.Ct. at 2731. New Mexico has a compelling state interest in protecting its citizens from contaminated water, and the Environment Department is held to defend that interest. All water users in the state must comply with the Regulations, and the Environment Department has the authority to deny well applications. Moongate was warned that it must comply with the Regulations or face denial of its applications; Moongate did not comply and the applications were denied. The intervening court case was immaterial. We find that Defendants did not violate Moongate‘s consti- tutional
IT IS SO ORDERED.
DONNELLY, J., concurs.
HARTZ, J., specially concurs.
HARTZ, Judge, specially concurring.
I concur in the judgment and join in all of Judge Alarid‘s opinion for the panel except for the last two paragraphs of Section D.