Gesell v. Cottonwood, City of et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Stephen Gesell,
Plaintiff,
v.
City of Cottonwood, et al.,
Defendants.
No. CV-24-08090-PCT-DWL
ORDER
Stephen Gesell (“Plaintiff”), the former Chief of Police of the City of Cottonwood
(“Cottonwood”), has sued Cottonwood and assorted current and former Cottonwood
officials for wrongful termination, defamation, due process violations, and various
statutory infractions. In March 2025, the Court dismissed Plaintiff’s sole federal claim—
a due process claim under 42 U.S.C. § 1983—and declined to continue exercising
supplemental jurisdiction over Plaintiff’s remaining state-law claims. (Doc. 20.) However,
the Court also granted Plaintiff leave to amend as to his § 1983 claim, and Plaintiff has
now filed an amended pleading in an attempt to cure the deficiencies identified in the
dismissal order. (Doc. 21.) Defendants have, in turn, filed another motion to dismiss.
(Doc. 25.) For the reasons that follow, the motion is granted, the § 1983 claim is dismissed
without leave to amend, and Plaintiff’s remaining state-law claims are remanded to the
Yavapai County Superior Court.
…
…
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RELEVANT BACKGROUND
I. Factual Allegations
The following facts, presumed true, are derived from Plaintiff’s operative pleading,
the Second Amended Complaint (“SAC”), and the documents attached thereto. (Doc. 21;
Doc. 21-1; Doc. 24 [notice of errata].)
Plaintiff is the former Cottonwood Chief of Police. (Doc. 21 ¶¶ 11, 69, 82.)
At all times relevant to this litigation, Tim Elinski (“Elinski”) was the Mayor of
Cottonwood, Jesus “Rudy” Rodriguez (“Rodriguez”) was the Deputy City Manager, Scotty
Douglass (“Douglass”) was the City Manager, Jennifer Winkler (“Winkler”) was the City
Attorney, Amanda Wilber (“Wilber”) was the City’s Human Resources Manager, and
Helaine Kurot (“Kurot”) was a City Council member. (Id. ¶¶ 3-8.) These individuals will
be collectively referred to as the “Individual Defendants.”
“Beginning in May of 2023, [Elinski] and [Rodriguez] attempted to leverage an
Arizona Civil Rights Division discrimination report (‘ACRD Report’), in order to
disparage and harm the Cottonwood Police Department and [Plaintiff] in part by
manipulating the City Council.” (Id. ¶ 11.) The ACRD Report concerned the conduct of
Plaintiff and other Cottonwood officials toward non-party Kiedi Dever (“Detective
Dever”). (Doc. 21-1 at 2-11.) Detective Dever filed a charge of discrimination against
Cottonwood, in part because Plaintiff reassigned her to the position of patrol officer
following a five-month extended leave of absence. (Id. at 10-11 n.2.) “Steve Horton, the
former City Attorney, had sought direction from [Plaintiff], and they had agreed to enter
conciliation.” (Doc. 21 ¶ 12.) Nevertheless, “[t]he ACRD Report was put on the [City
Council’s] May 9, 2023 agenda without [Plaintiff’s] knowledge or input” (id.), and “Elinski
had instructed Defendant Rodriguez to exclude [Plaintiff] from the May 9, 2023 meeting”
(id. ¶ 13). “Rodriguez sent an email to [Wilber] one hour prior to the meeting and
instructed her to attend and to tell [Plaintiff] he was not permitted in the meeting.” (Id.
¶ 15.) However, before the meeting started, “Elinski asked [Plaintiff] if he would be
available to answer questions at the executive session . . . [and] misled [Plaintiff] and the
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Council by acting as if he wanted [Plaintiff] to be included in the executive session.” (Id.
¶ 16.) Ultimately, “[e]ven though there were protests of multiple Councilmembers,
[Plaintiff] was not allowed to join.” (Id. ¶ 17.)
Plaintiff alleges that “[t]he Executive Session resulted in numerous statutory
violations due to the content of that session.” (Id. ¶ 30.) “[S]everal Cottonwood Police
Department sworn managers were discussed and maligned without cautionary restraint,”
and “[t]he discussion ended with the assertion that the agency had cultural and behavioral
issues that necessitated corrective action.” (Id. ¶ 28.) Plaintiff alleges that, by having these
discussions at a closed meeting, “Defendants violated the laws on Executive Sessions by
going beyond what was listed in the agenda for all employees” and by discussing Plaintiff’s
employment while failing to provide him “with written notice” at least 24 hours before the
meeting. (Id. ¶¶ 100-01.) “The preclusion of [Plaintiff] from this session [also] eliminated
the ability for [Plaintiff] to challenge the false claims and correct the information discussed
during the meeting.” (Id. ¶ 29.)
“[A]fter the meeting, [Plaintiff] contacted Defendant Rodriguez to learn the reason
he was excluded,” and “Rodriguez admitted he and Defendant Elinski were attempting to
influence the balance of the City’s elected body. Defendant Elinski also admitted this plan
in an email authored later that week stating he did not want [Plaintiff] to ‘insert himself’
into the discussion, despite the fact that the session involved the ACRD Report.” (Id.
¶¶ 17-18.)
On May 11, 2023, Plaintiff “was placed on administrative leave by Defendant
Rodriguez at the request of Defendant Elinski and it was later learned that Defendant
Elinski told Defendant Rodriguez to fire [Plaintiff]. No reason was listed for the
administrative leave at the time.” (Id. ¶ 19.) However, Kurot later told “Councilmember
Duvernay outside the normal process for Council meetings, that [Plaintiff] ‘threatened’
Defendant Rodriguez and Defendant Elinski and [Plaintiff] had ‘crossed the line.’”
(Id. ¶ 64.)
After being placed on administrative leave, Plaintiff received a Notice of
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Investigation (“NOI”) from Cottonwood. (Doc. 21-1 at 19-20.) The NOI informed him
that “[t]his investigation relates to your alleged conduct on May 9, 2023,” and “[y]ou are
alleged to have been hostile and aggressive when questioning Mr. Rodriguez about your
exclusion” from the City Council meeting. (Id. at 19.) The NOI also stated, “you have
specific rights and responsibilities in this investigation in accordance with ARS 38-1102.”
(Id.)
Cottonwood then hired a law firm, Osborn Maledon (“OM”), to investigate
Plaintiff’s conduct. (Doc. 21 ¶ 35.) During the investigation, Plaintiff “provided his input
which was ignored,” including “a summary of the chronology of [relevant] events . . . and
a list of suggested questions relevant to an objective investigation.” (Id.) The investigation
by OM also “followed POBAR [sic] procedures for part of the investigation including but
not limited to warnings about rights.” (Id. ¶ 121.) During severance negotiations with
Cottonwood, Plaintiff asked to see a copy of OM’s investigative report, but he was
informed by Cottonwood’s representative that “‘there is no report’ though it has been
determined that the investigation was completed weeks earlier.” (Id. ¶ 37.) “The report
that was eventually released . . . was not based on facts, clearly framing a false narrative,”
and “did not contain any just cause to terminate [Plaintiff].” (Id. ¶¶ 38-39.) OM also failed
to interview at least one important witness. (Id. ¶ 66.)
While these events were taking place, “Winkler recklessly sent [Plaintiff] the audio
of the May 9th Executive Session . . . . This disclosure resulted in Defendant Winkler
exposing the City to liability and likely violated A.R.S. § 38-510 (a), a class l
misdemeanor.” (Id. ¶¶ 31-32.) “[I]nstead of admitting to releasing the recording,
[Winkler] began to bully [Plaintiff] and his family about the disclosure and attempted to
conceal, minimize, and deflect her actions.” (Id. ¶ 30.)
On July 21, 2023, Plaintiff “filed a retaliatory complaint against Defendant Winkler
with the Human Resources Director, Defendant Wilber, and Defendant Douglass.” (Id.
¶¶ 33, 87.) However, Plaintiff later “discovered that Defendant Douglass had altered [the]
complaint against Defendant Winkler by removing the ten-page email attachment and his
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notations from a singular PDF document, rescanning the document, and then sending the
altered Complaint to the Council as if it were in the original form.” (Id. ¶ 41.) “Wilber
and Winkler were aware of the alteration and failed to notify the Council.” (Id. ¶ 96.)
On August 29, 2023, Plaintiff filed a second complaint against Douglass “about the
failure to address the complaint regarding Defendant Winkler and the discovery of
Defendant Douglass’ subsequent surreptitious alteration of the complaint.” (Id. ¶ 89.)
On September 7, 2023, about one week later, Plaintiff received a “letter of intent to
terminate” from Cottonwood. (Id. ¶ 61.) One of the reasons given for his termination was
the ACRD Report and “that [Plaintiff] ‘discriminated’ against a ‘female detective.’” (Id.
¶¶ 52, 61.) However, “[t]he ACRD report was . . . not included in notice of investigation
nor mentioned as a concern in [OM’s] investigation or findings.” (Id. ¶ 68.) As a result,
Plaintiff “was not given an opportunity to respond or refute this false allegation prior to the
Notice of Intent to Terminate.” (Id. ¶¶ 62.)
“At no time before or during the four months [Plaintiff] was on administrative leave
was the ACRD Report referenced as a concern.” (Id. ¶ 62.) Instead, Cottonwood’s
attorneys “repeatedly only referenced [Plaintiff’s] tone of voice when speaking to
Defendant Rodriguez as the justification for termination,” and one of Cottonwood’s
attorneys “repeatedly indicated [Plaintiff’s] role in the ACRD Report was based entirely
on an obscure ADA technicality.” (Id. ¶¶ 42, 63.)
On September 14, 2023, “[Plaintiff] was notified of his termination.” (Id. ¶ 69.)
“Douglass was the City Manager who terminated [Plaintiff] and stated it was his decision
because [Plaintiff] served at the pleasure of the ‘City Manager.’” (Id. ¶ 83.) “Pursuant to
A.R.S. § 38-1106, [Plaintiff] timely appealed the decision.” (Id. ¶ 69.) However,
“Douglass stated that [Plaintiff] was not entitled to an appeal because he was the Chief of
Police.” (Id. ¶ 70.)
Plaintiff alleges that “Wilber was fully aware [Plaintiff] was being terminated for
false cause” even though “she herself concurred with the action that resulted in the ACRD
ADA technical violation along with the City Manager and attorneys. She was also aware
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of the egregious procedural errors violating [Plaintiff’s] statutory rights,” but “[r]ather than
fulfill her role in protecting employee rights, [she] aided the other Defendants by helping
to facilitate [Plaintiff’s] wrongful termination.” (Id. ¶¶ 71-72.)
Plaintiff alleges the real reason he was terminated was in retaliation for reporting
statutory violations committed by Defendants. (Id. ¶¶ 75-76, 91.) “As a result of
Defendants’ actions, Plaintiff has been damaged. His ability to run for public office, obtain
employment in his field, or secure contracting work via his consulting business following
his highly successful 34-year law enforcement career has now been irreparably harmed due
to the actions of the Defendants.” (Id. ¶ 79.)
II. Procedural History
On April 3, 2024, Plaintiff filed a complaint in Yavapai County Superior Court.
(Doc. 1-1 at 3-27.)
On May 10, 2024, Defendants filed a notice of removal. (Doc. 1.) The sole
jurisdictional basis for removal was that the complaint asserted a federal claim under
42 U.S.C. § 1983. (Id. ¶ 5.) Due to the presence of federal-question jurisdiction over this
claim, Defendants asserted that the Court also “has supplemental jurisdiction over the state
law causes of action.” (Id.)
On May 22, 2024, Plaintiff filed a First Amended Complaint (“FAC”). (Doc. 6.) It
asserted two state-law claims against Cottonwood for wrongful termination (Counts One
and Two); a state-law claim against Cottonwood, Douglass, Wilber, and Winkler for
“Tampering With Public Records” (Count Three); a state-law claim against all Defendants
for violating Arizona’s “Open Meeting Laws” (Count Four); a state-law claim against
Kurot for defamation (Count Five); and a claim against all Defendants except Kurot under
42 U.S.C. § 1983 (Count Six). (Id. ¶¶ 80-126.)
On May 30, 2024, Plaintiff moved to disqualify Defendants’ counsel. (Doc. 8.)
On June 10, 2024, Defendants filed a motion to dismiss the FAC. (Doc. 13.)
On December 6, 2024, the Court denied the disqualification motion. (Doc. 17.)
On March 27, 2025, the Court granted Defendants’ motion to dismiss the FAC.
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(Doc. 20.) In a nutshell, the Court held that Count Six was subject to dismissal for failure
to state a claim and then, having dismissed Plaintiff’s sole federal claim, declined to
continue exercising supplemental jurisdiction over Plaintiff’s remaining state-law claims.
(Id. at 22-23.) The Court also granted Plaintiff’s request for leave to amend as to the
portion of Count Six that asserted a procedural due process claim pursuant to § 19831 and
authorized Plaintiff to reassert the state-law claims in Counts One through Five if he chose
to amend as to Count Six. (Id. at 25.)
On April 10, 2025, Plaintiff filed the SAC. (Doc. 21; Doc. 23 [redlines].)
On April 23, 2025, Defendants filed the pending motion to dismiss. (Doc. 25.) The
motion is now fully briefed (Docs. 26, 27) and neither side requested oral argument.
DISCUSSION
I. Count Six
A. Legal Standard
Under Rule 12(b)(6), “to survive a motion to dismiss, a party must allege sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.” In re
Fitness Holdings Int’l, Inc., 714 F.3d 1141, 1144 (9th Cir. 2013) (cleaned up). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “[A]ll well-pleaded allegations of
material fact in the complaint are accepted as true and are construed in the light most
favorable to the non-moving party.” Id. at 1144-45 (citation omitted). However, the court
need not accept legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678-
80. Moreover, “[t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id. at 678. The court also may dismiss due
to “a lack of a cognizable legal theory.” Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th
Cir. 2015) (citation omitted).
1 The version of Count Six asserted in the FAC, and dismissed in the March 2025
order, was premised on both procedural and substantive due process theories. The Court
did not grant leave to amend as to the latter theory.
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B. Required Elements
Count Six is a § 1983 claim premised on the violation of Plaintiff’s constitutional
right “to procedural due process.” (Doc. 21 ¶ 115.) The March 2025 order identified the
elements of such a claim. (Doc. 20 at 7-9.) In summary, “[a] procedural due process claim
has two distinct elements: (1) a deprivation of a constitutionally protected liberty or
property interest, and (2) a denial of adequate procedural protections.” Roybal v.
Toppenish Sch. Dist., 871 F.3d 927, 931 (9th Cir. 2017). State law is relevant when it
comes to the first element, as “[a] government employee has a constitutionally protected
property interest in continued employment when the employee has a legitimate claim of
entitlement to the job. Laws, rules or understandings derived from independent sources
such as state law create such claims of entitlement.” Portman v. Cty. of Santa Clara, 995
F.2d 898, 904 (9th Cir. 1993) (citation omitted).
The second element of a procedural due process claim poses “a question of federal,
not state, law.” Roybal, 871 F.3d at 933. This is because “[f]ederal due process does not
necessarily entitle a plaintiff to the same procedures provided by state law. Rather, under
federal law, what process is due is determined by context, to be analyzed in accordance
with the three-part balancing test described in [Mathews v. Eldridge, 424 U.S. 319
(1976)].” Id. Under that test, “[t]o satisfy federal due process minimums, . . . employees
need only receive notice and an opportunity for a hearing before being deprived of their
property interest.” Id.
C. Analysis
1. Veach And The 2022 POBOR Amendment
During the last round of motion-to-dismiss briefing, Defendants advanced an array
of reasons why Plaintiff’s procedural due process-based § 1983 claim in Count Six should
be dismissed. One of Defendants’ arguments was that because Plaintiff was an at-will
employee under state law, he lacked a protected property interest in his position as Chief
of Police, which is a prerequisite to the assertion of a procedural due process claim. (Doc.
13 at 14 [“Plaintiff was an at-will employee of the City at the time of his termination and
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had no property interest in his employment.”].) In response, Plaintiff argued, inter alia,
that the 2022 amendment to the Arizona Peace Officer Bill of Rights (“POBOR”) gave him
a claim of entitlement to his position. (Doc. 18 at 9-11.)
As of March 2025, no Arizona state court had addressed this issue. Nor had any
federal appellate court. The only existing decision at that time was Blunt v. Town of
Gilbert, 2024 WL 2722167 (D. Ariz. 2024). There, a peace officer who had been hired as
an at-will employee (via a written employment agreement) argued that he subsequently
acquired a protected property interest in his position by virtue of the 2022 POBOR
amendment, such that he could assert a procedural due process-based § 1983 claim to
challenge his September 2023 termination. Id. at *1-2. The district court in Blunt
disagreed: “The employment agreement stands as written, and Plaintiff Blunt was legally
an at-will employee of the Town. In turn, Plaintiff Blunt did not have a constitutionally
protected interest in his employment. The 2022 amendment does not retroactively apply
to the agreement or preempt the employment agreement between Plaintiff Blunt and the
Town. Accordingly, because Plaintiff Blunt lacks a constitutionally protected interest in
his employment, Count I [procedural due process] will be dismissed with prejudice.” Id.
at *5 (citation omitted).
Nevertheless, given the absence of appellate guidance on this issue at the time, and
because Defendants had also identified alternative reasons why Count Six was subject to
dismissal, the Court declined in the March 2025 order to reach the merits of the parties’
POBOR-related arguments. Instead, the Court more narrowly held that (1) the Individual
Defendants were entitled to qualified immunity as to Plaintiff’s procedural due process
claim because Plaintiff failed to “identify a prior case . . . that would have imparted notice
to the Individual Defendants at the time of their challenged conduct that Plaintiff had a
protected property interest in his position as the Cottonwood Chief of Police”; and (2)
Cottonwood could not be held liable under Monell v. Dep’t of Soc. Servs. of the City of
New York, 436 U.S. 658 (1978), with respect to Count Six because the FAC failed to allege
sufficient facts to establish that the alleged violation was the result of a policy, custom, or
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practice, was committed by a final policymaker, or was ratified. (Doc. 20 at 10-20.) The
Court acknowledged, moreover, that if Defendants’ POBOR-related arguments were
correct, they would be entitled to dismissal on that basis, too. (Id. at 13, citation omitted
[“Although Defendants urge the Court to find that Blunt was correctly decided and to
determine that the 2022 POBOR amendment was inapplicable to Plaintiff, it is unnecessary
to go that far in resolving the Individual Defendants’ request for qualified immunity.”]; id.
at 20 n.4 [“The Court acknowledges that if Defendants are correct about the disputed
property-interest issue . . . , this would provide an alternative basis for dismissing Count
Six as to Cottonwood.”].)
In the most recent round of motion-to-dismiss briefing, the parties reassert their
POBOR-related arguments. (Doc. 25 at 4-5 [“As outlined in Defendants’ prior Motion,
Plaintiff remained an at-will employee because: (1) he served at the pleasure of the City
Manager at the time of his hiring as reflected in the City’s code; (2) his at-will status
became a term of his implied contract with the City; (3) the 2022 amendments to the
POBOR, which allegedly modified Plaintiff’s at-will status, were not retroactive; and (4)
the application of the 2022 POBOR amendments to Plaintiff would violate the Contract
Clause. Because there were no substantive restrictions on the City’s right to terminate
Plaintiff’s employment, he did not have any constitutionally protected property interest.”];
Doc. 26 at 3-4 [“There have been no state or federal appellate court decisions on this issue
thus, they have not been finally decided. . . . Plaintiff reiterates that he was in fact protected
by POBOR . . . .”].) Additionally, after the motion became fully briefed, the Arizona Court
of Appeals decided Veach v. City of Chandler, 2025 WL 2781328 (Ariz. Ct. App. 2025).
The plaintiff in Veach was a police officer employed by the City of Chandler who entered
into a written at-will employment contract in 2020, was terminated in 2023, and then
sought to appeal the termination decision pursuant to the procedural rights set forth in the
POBOR. Id. at *1. After the city refused to entertain his appeal, on the ground that he had
no POBOR rights, the plaintiff filed an action in Maricopa County Superior Court. Id. The
trial court dismissed his lawsuit, concluding that he was an at-will employee despite the
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2022 POBOR amendment, and the appellate court unanimously affirmed, holding that
“Chandler’s right to treat Veach as an at-will employee, including the right to terminate
him without just cause, vested when the parties executed the at-will agreement in 2020”
and that “the 2022 statute does not apply to Veach.” Id. at *2, 4. In a notice of
supplemental authority, Defendants argue that Veach supports dismissal of Count Six.
(Doc. 28.) Plaintiff has not responded.
At first blush, the intervening development of Veach would appear to provide a
reason to wade into the merits of the POBOR amendment issue that the Court declined to
address in the March 2025 order.2 Veach addresses whether an Arizona police officer hired
pursuant to an at-will employment contract before the effective date of 2022 POBOR
amendment should be deemed to have acquired a protected property interest in the position
by virtue of the 2022 POBOR amendment. Under Veach, the answer to that question is no.
And although Veach is an unpublished decision of an intermediate state court, the parties
have identified no convincing reason to believe the Arizona Supreme Court would decide
the issue any differently. In re Kirkland, 915 F.2d 1236, 1238-39 (9th Cir. 1990) (“When
interpreting state law, a federal court is bound by the decision of the highest state court. In
the absence of such a decision, a federal court must predict how the highest state court
would decide the issue using intermediate appellate court decisions, decisions from other
jurisdictions, statutes, treatises, and restatements as guidance. However, in the absence of
convincing evidence that the highest court of the state would decide differently, a federal
court is obligated to follow the decisions of the state’s intermediate courts.”) (cleaned up).
Nevertheless, the Court is not entirely persuaded that Veach controls the property-
right analysis here. On the one hand, Defendants are correct that when Plaintiff began
serving as the Cottonwood Chief of Police, which occurred before the effective date of the
2022 POBOR amendment,3 Plaintiff was an at-will employee. Although Plaintiff alleges
2 As for further developments in Blunt, the Ninth Circuit held oral argument in May
2025 but had not, as of the date of this order, issued a decision.
3 Although the record does not reveal exactly when Plaintiff was hired as Chief of
Police, references in the SAC to Plaintiff’s conduct as Chief of Police in June 2022 (Doc.
21 ¶¶ 26, 45, 56) demonstrate that the hiring necessarily occurred before September 24,
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in the SAC that he “did not sign an ‘at will contract’” (Doc. 21 ¶ 120), Plaintiff ignores
that the Cottonwood municipal code expressly states that “[t]he police chief shall be
appointed by and shall serve at the pleasure of the city manager.” Cottonwood City Code
§ 2.44.030. See generally Higginbottom v. State, 51 P.3d 972, 975 (Ariz. Ct. App. 2002)
(“It has long been the rule in Arizona that a valid statute is automatically part of any
contract affected by it, even if the statute is not specifically mentioned in the contract.”);
Alpha, LLC v. Dartt, 304 P.3d 1126, 1130 (Ariz. Ct. App. 2013) (citing Illinois decision
for the proposition that “an ordinance is a legislative act and is the equivalent of a municipal
statute”).4 Thus, at the time of his hiring, Plaintiff lacked a protected property interest in
his position. See, e.g., Portman, 995 F.2d at 904 (“If under state law, employment is at-
will, then the claimant has no property interest in the job.”); Brady v. Gebbie, 859 F.2d
1543, 1548 (9th Cir. 1988) (“Where state employees serve at the will of the appointing
authority, . . . there is no such reasonable expectation of continued employment, and thus
no property right.”). Defendants are also correct that although Plaintiff’s at-will
employment relationship with Cottonwood was not memorialized in a written contract, it
was still contractual in nature. See, e.g., A.R.S. § 23-1501(A)(1) (“The public policy of
this state is that . . . [t]he employment relationship is contractual in nature.”); Swingle v.
Myerson, 509 P.2d 738, 740 (Ariz. Ct. App. 1973) (“There is no difference in the legal
effect between an express contract and an implied contract.”).
On the other hand, this case—unlike Veach and Blunt—does not involve a written
employment contract, and the outcome in Veach turned on the fact that the City of
Chandler’s “substantive rights in its at-will agreement with Veach vested before the 2022
2022, which was the effective date of the POBOR amendment.
4 Furthermore, the position of Chief of Police is designated in a Cottonwood
administrative regulation as one of the positions that “serve[s] at the pleasure and will of
the City Manager.” See Cottonwood Admin. Reg. 8, available at
https://cottonwoodaz.gov/DocumentCenter/View/6718/AR-8-10-14-2019?bidId
[https://perma.cc/3FKL-83S4]. To the extent Plaintiff argues that the information
appearing in the administrative regulation previously appeared in Cottonwood’s policy
manual but was later removed (Doc. 26 at 6-7 [arguing that the revision occurred in “July
of 2021”]), Plaintiff does not explain why this somehow supports his position.
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statute existed,” because “Chandler’s right to treat Veach as an at-will employee, including
the right to terminate him without just cause, vested when the parties executed the at-will
agreement in 2020.” Veach, 2025 WL 2781328 at *4. That analysis makes sense in the
context of a written employment agreement, but the analysis may be different here. As the
Arizona Supreme Court has explained, “[a]t-will employment contracts are unilateral and
typically start with an employer’s offer of a wage in exchange for work performed;
subsequent performance by the employee provides consideration to create the contract.
Thus, before performance is rendered, the offer can be modified by the employer’s
unilateral withdrawal of the old offer and substitution of a new one: the employer makes a
new offer with different terms and the employee again accepts the new offer by
performance (such as continued employment). Thus a new unilateral contract is formed—
a day’s work for a day’s wages.” Demasse v. ITT Corp., 984 P.2d 1138, 1142-43 (Ariz.
1999) (citation omitted). Such arrangements result in “day-to-day unilateral contract offers
and acceptances.” Cornell v. Desert Fin. Credit Union, 524 P.3d 1333, 1337 (Ariz. 2023).
If, per these Arizona authorities, the proper way to conceptualize Plaintiff’s work for
Cottonwood (at least in the absence of a written employment contract) was as the formation
of a new daily contract each day that Plaintiff agreed to work for Cottonwood, then it is
difficult to see how the daily contracts formed after the effective date of the 2022 POBOR
amendment could still qualify as at-will contracts. Veach, 2025 WL 2781328 at *4 (“[T]he
statute’s most immediate impact is to prohibit employers and peace officers from
bargaining for at-will agreements, which the 2014 statute preserved. In other words,
whether Veach is entitled to the POBR’s procedural protections most immediately turns on
whether he entered an at-will agreement before the 2022 statute . . . .”).
With that said, it remains unnecessary to resolve this complicated issue for purposes
of this case. Even assuming for the sake of argument that Plaintiff’s understanding of the
2022 POBOR amendment is correct, such that he had acquired a protected property
interested in his position as Chief of Police by the time of his termination in the fall of
2023, his procedural due process-based § 1983 claim remains subject to dismissal for the
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same reasons identified in the March 2025 order—namely, he cannot overcome the
Individual Defendants’ invocation of qualified immunity and he has failed to allege
sufficient facts to hold Cottonwood liable under a Monell theory.
2. The Individual Defendants
In the March 2025 order, the Court determined that the Individual Defendants were
entitled to qualified immunity because Plaintiff made no effort to identify prior case law
that “would have imparted notice to the Individual Defendants at the time of their
challenged conduct that Plaintiff had a protected property interest in his position as the
Cottonwood Chief of Police by virtue of the 2022 amendment to the POBOR.” (Doc. 20
at 14.) The Individual Defendants again seek dismissal of Count Six on this ground,
arguing that Plaintiff’s alleged “property interest in his employment” was not clearly
established at the time of the challenged conduct. (Doc. 25 at 5.)
In response, Plaintiff once again does not attempt to identify a prior case that might
qualify as clearly established law supporting his position. (Doc. 26 at 8.) Instead, Plaintiff
simply attempts to explain why Blunt is factually distinguishable: “Plaintiff, unlike the
Plaintiff in Blunt, did not sign a contract saying he was at will.” (Id.) But this approach
misunderstands how qualified immunity works. It is not the Individual Defendants’ burden
to identify a case vindicating their position. Rather, and as explained in the March 2025
order, “[t]he plaintiff bears the burden of pointing to prior case law that articulates a
constitutional rule specific enough to alert these officers in this case that their particular
conduct was unlawful. The necessity of identifying a prior case with similar facts is
particularly pronounced in the context of procedural due process claims.” (Doc. 20 at 13-
14, cleaned up.) Plaintiff has not even attempted to meet that burden here.
Plaintiff’s only remaining argument on the issue of qualified immunity is that
because the NOI form stated that he had “rights under A.R.S. §38-1102,” because the
investigator from OM “followed POBAR [sic] procedures for part of the investigation,”
and because he “was specifically told during his interview with the City’s investigator that
he had rights under POBAR,” these interactions show that “[t]he Individual Defendants
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were in fact aware of Plaintiff’s rights to procedural due process in his position.” (Doc. 21
¶¶ 120, 121. See also Doc. 26 at 9 [“The recognition by the employees themselves shows
that knowledge of Plaintiff’s rights.”].) This argument is unavailing. As the Ninth Circuit
has explained, “to determine whether the defendants are entitled to qualified immunity, we
do not consider whether they subjectively understood” they were violating the law—
“[r]ather, we conduct an objective examination of whether established case law would
make clear to every reasonable official that the defendant’s conduct was unlawful in the
situation he confronted.” Russell v. Lumitap, 31 F.4th 729, 740 (9th Cir. 2022) (cleaned
up). See also Sandoval v. Cnty. of San Diego, 985 F.3d 657, 673 (9th Cir. 2021) (“[E]ven
where the clearly established legal standard requires [subjective] deliberate indifference,
the qualified immunity inquiry should concentrate on the objective aspects of the
constitutional standard.”) (citation omitted). Thus, “to defeat qualified immunity,
[Plaintiff] must show that, given the available case law at the time, a reasonable official,
knowing what [the Individual Defendants] knew, would have understood that their actions
. . . [were] unconstitutional.” Russell, 31 F.4th at 740. For the reasons discussed in the
preceding paragraph, Plaintiff has not made that showing here.
3. Cottonwood
In the March 2025 order, the Court dismissed Count Six as to Cottonwood because
“the FAC’s allegations [were] insufficient under Monell to state a procedural due process
claim.” (Doc. 20 at 20.) More specifically, the Court concluded that the FAC failed to
allege “any facts that plausibly suggest Cottonwood had an official policy of violating
employees’ procedural due process rights,” “sufficient facts to support liability under a
‘practice or custom’ theory,” sufficient facts to support “a ‘final policymaker’ theory,” or
“well-pleaded allegations . . . suggesting [ratification].” (Id. at 18-20.)
The SAC contains only a handful of new factual allegations intended to address
these deficiencies. The new allegations appear in paragraphs 126 and 127,5 which provide:
5 The paragraphs on pages 25-26 of the SAC are numbered, in sequence, “125,”
“126,” “127,” “127,” and “126.” The new factual allegations referenced above appear in
the first paragraph 126 and the first paragraph 127.
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126. Defendant City of Cottonwood had a practice or custom of allowing
the Mayor and or City Manager to make policy as demonstrated by
Exhibit L, in which the former Council Member hereby states that
there was an ongoing and frequent practice of allowing these actors to
make decisions on their own such that these decisions represented
official policy. These actions extended not just to Plaintiff but many
other employees as well.
127. Alternatively, Defendant City of Cottonwood authorized the City
Manager and/or Mayor to be a final policymaker such as in
determining whether to provide appropriate executive session notices,
terminate employees, or ignore procedures that were in place for
discipline. This is shown not only by the actions but by the very
language of claiming Plaintiff was “at will”- that the position served
at the pleasure of the City Manager which necessitates a wielding of
power to the City Manager, here Defendant Douglas.
(Doc. 23 at 28-29 ¶¶ 126, 127.)
In their motion, Defendants argue that the Monell claim against Cottonwood still
fails because the SAC does not allege that “due process violations occurred pursuant to an
official policy or custom or were committed or ratified by a final policymaker,” as “only
the City Council has the authority to create personnel policies regarding procedural due
process.” (Doc. 25 at 5-6.) According to Defendants, the SAC “regurgitates the same
discredited argument that the City Manager was a final policymaker based on his authority
to terminate Plaintiff” and “makes vague and conclusory allegations that the City has a
custom of allowing the Mayor and City Manager to create policy.” (Id. at 6.) Defendants
further argue—in reference to Plaintiff’s Exhibit L, which includes affidavits by former
Cottonwood City Council members Lisa DuVernay (“DuVernay”) and Michael Mathews
(“Mathews”) (Doc. 21-1 at 68-74) and two letters from DuVernay’s counsel (Doc. 24 at 6-
8)—that “Exhibit L to the SAC does nothing to salvage Plaintiff’s due process claim”
because “[e]ven assuming the veracity of the allegations in the letters, there is nothing that
remotely suggests that the City has an established practice of denying employees’
procedural due process rights . . . . Instead, the letter describes two isolated and/or sporadic
instances unrelated to due process.” (Doc. 25 at 10.)
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In response, Plaintiff argues that Exhibit L “make[s] it clear that Defendants
repeatedly ignored the city code and statutes and made decisions on their own, which the
Defendant City did not correct as a practice.” (Doc. 26 at 10.) Plaintiff contends that, as
a result, he “has set forth sufficient facts to address the court’s concern that Elinski,
Rodriguez, Winkler, Douglass, and/or Wilber qualify as final policymakers and thus the
Defendant City can be held liable if it delegated its policymaking authority or that its
policymakers ratified the unconstitutional conduct.” (Id.) Plaintiff further argues that
“Cottonwood authorized the City Manager and/or Mayor to be a final policymaker, such
as in determining whether to provide appropriate executive session notices, terminate
employees, or ignore procedures that were in place for discipline. This is shown not only
by the actions but by the very argument claiming Plaintiff was ‘at will’- that the position
served at the pleasure of the City Manager which necessitates a wielding of power to the
City Manager, here Defendant Douglas.” (Id. at 11.)
In reply, Defendants reiterate that “Plaintiff has not cited to any other instances in
which a City employee was allegedly denied due process. Instead, Plaintiff alleges that the
City (1) failed to agendize the appointment of an Acting City Manager; (2) violated
requirements for executive sessions; and (3) allowed the Deputy City Manager to assume
the role of Acting City Manager without authority—none of which relate to the procedural
protections due to a terminated employee.” (Doc. 27 at 7.) Defendants also argue that
“Plaintiff confuses involvement in a decision with ratification” and that “to establish
liability, Plaintiff must prove that a final policymaker made a deliberate choice to deny
Plaintiff an appeal hearing for unconstitutional reasons,” which “Plaintiff has not even
attempted to plausibly satisfy.” (Id. at 8-9.)
The Court agrees with Defendants that the SAC fails to allege any facts that suggest
Cottonwood had an official policy of violating employees’ procedural due process rights.
Instead, the SAC simply repeats the FAC’s allegation that because “the Mayor, City
Manager, City Attorney and City Council were involved in the process and decision, the
actions represented official policy.” (Doc. 21 ¶ 124; Doc. 23 ¶ 124.) That allegation
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remains insufficient—Plaintiff “has not directed us to any policy, officially adopted and
promulgated by the City.” Delia v. City of Rialto, 621 F.3d 1069, 1082 (9th Cir. 2010),
abrogated on other grounds by Filarsky v. Delia, 566 U.S. 377 (2012).
Nor does the SAC allege sufficient facts to support liability under a practice or
custom theory. “[L]iability for improper custom may not be predicated on isolated or
sporadic incidents; it must be founded upon practices of sufficient duration, frequency and
consistency that the conduct has become a traditional method of carrying out policy.”
Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). In an effort to establish the existence
of such a policy or custom, Plaintiff points to Exhibit L, which sets forth various allegations
of past misconduct committed by Cottonwood officials. (Doc. 21-1 at 69 ¶ 3 [DuVernay:
“[Elinski] subsequently directed the Clerk to remove the Requested Agenda Item, in
violation of the Cottonwood City Code . . . .”]; id.at 69 ¶ 4 [DuVernay: “[A]s to [Plaintiff]
three council members requested his presence as the department head during an executive
session, but we faced opposition from [Elinski] . . . .”]; id. at 69 ¶ 7 [DuVernay: “Another
instance of [Elinski] disregarding city ordinances . . . occurred when the council received
the agenda just 24 hours before the meeting . . . .”]; id. at 71 ¶ 2 [Mathews: “I personally
observed [Elinski]’s influence over the city manager . . . resulting in the termination of
several employees that [Elinski] disliked.”]; id. at 72 ¶ 3 [Mathews: “I also experienced
legal intimidation from [Winkler] . . . . She attempted to have me admit to illegal
possession and implicate others at the same time.”]; id. at 72 ¶ 4 [Mathews: “I was also a
witness to the conspiracy of [Elinski], [Douglass], and [Winkler] to discredit and destroy
Council Member Palosaari in retaliation for being key to having me appointed to the city
council and thereby changing the balance of power away from the mayor.”]; Doc. 24 at 8
[DuVernay’s counsel: “DuVernay has recently become aware that [Rodriguez] [is]
executing the duties and functions of the City Manager without authority.”].) According
to Plaintiff, these allegations demonstrate that “Cottonwood had a practice or custom of
allowing the Mayor and or City Manager to make policy.” (Doc. 21 at 25 ¶ 126.)
These arguments lack merit. None of the alleged incidents detailed in Exhibit L
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involved violating employees’ procedural due process rights in connection with a
termination. Because the SAC merely alleges incidents of misconduct untethered to the
conduct underlying Count Six, it fails to state a practice or custom claim. See, e.g.,
Williams v. Garcia, 2023 WL 2139655, *5-6 (C.D. Cal. 2023) (dismissing Monell claim
where the defendant argued that the complaint merely “describe[d] customs and policies
that are unrelated to this action” and emphasizing that “the asserted policy must be closely
related to the ultimate injury”) (cleaned up); Ingall v. Rabago, 2021 WL 431467, *8 (D.
Hawaii 2021) (“Plaintiff’s broad articulation of purported policies, patterns, and customs
simply do not make any sense when considered against the different conduct and context
alleged with respect to each of the incidents. . . . [T]he policies, customs, and practices
Plaintiff alleges are either too generic or too tenuous.”).
The SAC’s allegations are also insufficient under a final policymaker theory.
“[W]hether a particular official has ‘final policymaking authority’ is a question of state
law.” City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (emphasis in original).
Federal courts consider “the relevant legal materials, including state and local positive law,
as well as ‘custom or usage’ having the force of law.” Jett v. Dallas Indep. Sch. Dist., 491
U.S. 701, 737 (1989).
In the March 2025 order, the Court concluded that the allegations in the FAC were
insufficient to support a final policymaker claim because “Plaintiff has not made any
attempt to identify any provision of state or municipal law that plausibly suggests the
Mayor, City Manager, or City Attorney wielded final policymaking authority with respect
to the challenged due process violations at issue here. Nor has Plaintiff responded to
Defendants’ argument that those actors cannot act independently of the City Council,
which ‘may only create policy through a majority vote at a properly noticed, formal council
meeting.’” (Doc. 20 at 19.) The only new allegation in the SAC intended to address this
deficiency is the allegation in paragraph 127 that “Cottonwood authorized the City
Manager and/or Mayor to be a final policymaker such as in determining whether to provide
appropriate executive session notices, terminate employees, or ignore procedures that were
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in place for discipline. This is shown not only by the actions but by the very language of
claiming Plaintiff was ‘at will’- that the position served at the pleasure of the City Manager
which necessitates a wielding of power to the City Manager, here Defendant Douglas.”
(Doc. 21 at 25-26 ¶ 127.)
This new allegation is insufficient. The mere fact that the Cottonwood City Code
states that the Chief of Police serves at the pleasure of the City Manager (Doc. 25 at 4)
does not establish that the City delegated final policymaking authority to the City Manager
or that the City Manager is a final policymaker when it comes to compliance (or lack
thereof) with employment-related procedural requirements created by the City Council.
See, e.g., Pembaur v. City of Cincinnati, 475 U.S. 479, 483 n.12 (1986) (“[T]he County
Sheriff may have discretion to hire and fire employees without also being the county
official responsible for establishing county employment policy. . . . [I]f county
employment policy was set by the Board of County Commissioners, only that body’s
decisions would provide a basis for county liability. This would be true even if the Board
left the Sheriff discretion to hire and fire employees and the Sheriff exercised that
discretion in an unconstitutional manner; the decision to act unlawfully would not be a
decision of the Board.”); Gillette v. Delmore, 979 F.2d 1342, 1349-50 (9th Cir. 1992)
(rejecting Monell claim in § 1983 action brought by firefighter who claimed he was
suspended from his employment in retaliation for exercising his First Amendment rights,
where one of the plaintiff’s theories was that “Fire Chief Hall was . . . a ‘policymaker’
whose individual decision could be attributed to the City under Monell . . . [because] Hall
had final authority with respect to disciplining fire fighters and had been delegated de facto
authority to establish personnel policy within the Fire Department,” because “the Eugene
City Charter and ordinances grant authority to make City employment policy only to the
City Manager and the City Council”); Delia, 621 F.3d at 1083 (“This argument confuses
final decisionmaking authority with final policymaking authority.”). Plaintiff has failed to
identify any provision of state or municipal law that plausibly suggests that the Mayor, City
Manager, or City Attorney wielded final policymaking authority with respect to the
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challenged due process violations at issue here.
Finally, with respect to ratification, the SAC and Plaintiff’s response brief merely
repeat arguments the Court previously rejected. Plaintiff again argues that the “City
Council itself . . . [was] directly involved in the termination process, thus ratifying it.”
(Doc. 26 at 10.) However, ratification “requires an official policymaker make a deliberate
choice from among various alternatives to follow a particular course of action.” Gillette,
979 F.2d at 1348. “[A] policymaker [must] approve a subordinate’s decision and the basis
for it before the policymaker will be deemed to have ratified the subordinate’s discretionary
decision.” Id. Thus, where a plaintiff merely alleges that the relevant municipal
policymaker “did not overrule a discretionary [employment] decision” by another
municipal official, this “cannot form the basis of municipal liability under section 1983.”
Id. “To hold cities liable under section 1983 whenever policymakers fail to overrule the
unconstitutional discretionary acts of subordinates would simply smuggle respondeat
superior liability into section 1983 law. . . . We decline to endorse this end run around
Monell.” Id.
Because the SAC’s allegations are insufficient to state a procedural due process
claim against Cottonwood, Count Six is dismissed.
II. The Remaining Claims
Defendants also seek dismissal of Plaintiff’s state-law claims in Counts One through
Five and to strike portions of the SAC that contain references to material purportedly
considered confidential under state law. (Doc. 25 at 11.) The Court finds it unnecessary
to reach the merits of those arguments.
“[A] district court has discretion to remand to state court a removed case involving
pendent [state-law] claims upon a proper determination that retaining jurisdiction over the
case would be inappropriate.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357 (1988).
“The discretion to remand enables district courts to deal with cases involving pendent
claims in the manner that best serves the principles of economy, convenience, fairness, and
comity which underlie the pendent jurisdiction doctrine.” Id. “[I]n the usual case in which
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all federal-law claims are eliminated before trial, the balance of factors to be considered
under the pendent jurisdiction doctrine—judicial economy, convenience, fairness, and
comity—will point toward declining to exercise jurisdiction over the remaining state-law
claims.” Id. at 350 n.7 (1988). See also 28 U.S.C. § 1367(c)(3) (“The district courts may
decline to exercise supplemental jurisdiction over a [pendent state-law claim] if . . . the
district court has dismissed all claims over which it has original jurisdiction.”).
The Court has considered the relevant factors and concludes that they favor remand.
The parties all appear to be Arizona citizens. (Doc. 21 ¶¶ 2-8.) The sole basis for removal
was the presence of federal-question jurisdiction over Plaintiff’s § 1983 claim, which in
turn conferred supplemental jurisdiction over the remaining state-law claims. (Doc. 1 ¶ 5.)
It also appears the Yavapai County Superior Court is at least as convenient a forum as this
Court. Cf. Shooter v. Arizona, 2019 WL 2410808, *8 (D. Ariz. 2019), aff’d, 4 F.4th 955
(9th Cir. 2021) (concluding the same under similar circumstances). Most important,
considerations of federalism and comity are best served by allowing the Arizona state
courts to address state-law claims. United Mine Workers of Am. v. Gibbs, 383 U.S. 715,
726 (1966) (“Needless decisions of state law should be avoided both as a matter of comity
and to promote justice between the parties, by procuring for them a surer-footed reading of
applicable law.”).
III. Attorneys’ Fees
Defendants include in their motion to dismiss a request for “an award of attorneys’
fees based on Plaintiff’s continuing efforts to assert groundless and frivolous claims.”
(Doc. 25 at 11.) This request is denied. Although the Court has concluded that Count Six
is subject to dismissal, this does not mean Count Six was frivolous. Moreover, Defendants
have not prevailed in this action—instead, they have simply secured the dismissal of one
of Plaintiff’s many claims. Perhaps Defendants will emerge as the prevailing parties when
all is said and done, but neither side has prevailed yet. Any request for attorneys’ fees
should be made to the state-court judge at the conclusion of the entire litigation.
…
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IV. Leave To Amend
Plaintiff contends that “[s]hould the Court find that Count 6 has not been
satisfied . . . this court [should] remand the remaining counts to state court and dismiss
Count 6 as a final order so it can be appealed.” (Doc. 26 at 2.) The Court will therefore
dismiss Count Six of the SAC without leave to amend.
Accordingly,
IT IS ORDERED that
1. Defendants’ motion to dismiss (Doc. 25) is granted.
2. Count Six of the SAC is dismissed without leave to amend.
3. The Clerk of Court shall remand this case to the Yavapai County Superior
Court and then terminate this action.
Dated this 2nd day of February, 2026.
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