Brecheen v. Lofaro , 559 F. App'x 723 ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
May 21, 2014
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
ROGER BRECHEEN, M.D., individually
and as successor to ROGER BRECHEEN,
P.C., a Wyoming corporation; JACKSON
HOLE OB-GYN P.C., a Wyoming
corporation; KATHY WATKINS-
BRECHEEN, CNM,
Plaintiffs-Appellants,
No. 13-8059
v. (D.C. No. 1:10-CV-00263-SWS)
(D. Wyo.)
MAURA LOFARO, M.D. - Doctor of
Medicine, individually and acting through
MAURA J. LOFARO, M.D., P.C., a
Wyoming corporation; SHANNON
ROBERTS, M.D.,
Defendants-Appellees.
ORDER AND JUDGMENT*
Before BRISCOE, Chief Judge, BALDOCK and MATHESON, Circuit Judges.
Plaintiffs Roger Brecheen, M.D., his wife, Kathy Watkins-Brecheen, and Jackson
Hole Ob-Gyn, P.C., a professional corporation formed by Brecheen, filed this action
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
asserting a host of federal and state claims arising out of Brecheen’s eviction from an
office building in Jackson, Wyoming. Among those were two claims asserted under 42
U.S.C. § 1983, one for deprivation of Brecheen’s property interests and another for
deprivation of Brecheen’s liberty interests, against defendant Maura Lofaro, M.D., a
former partner of Brecheen’s. The district court granted summary judgment in favor of
Lofaro on those claims. Plaintiffs now appeal. Exercising jurisdiction pursuant to 28
U.S.C. § 1291, we affirm.
I
Factual background
a) The parties and their employment
Plaintiff Roger Brecheen, M.D. (Brecheen), is a board-certified obstetrician and
gynecologist licensed to practice medicine in the State of Wyoming. Brecheen’s wife,
plaintiff Kathy Watkins-Brecheen (Watkins-Brecheen), is a certified nurse midwife
licensed to practice in the State of Wyoming.
In 1993, Brecheen and his wife moved to Jackson, Wyoming, where Brecheen
established a solo practice in obstetrics and gynecology. Watkins-Brecheen began
working for Brecheen shortly thereafter. In June 1994, Brecheen formed Jackson Hole
Ob-Gyn, P.C. (JHOG), a professional corporation through which he provided obstetric
and gynecologic care to his patients.
In July 1997, defendant Maura Lofaro, M.D. (Lofaro), began working for JHOG as
a board-certified obstetrician and gynecologist. Lofaro also served as a sponsoring
2
physician for Watkins-Brecheen in her work as a midwife. On March 1, 2000, Brecheen
and Lofaro entered into a Stock Purchase and Transfer Agreement pursuant to which each
of them became a 50% shareholder of JHOG.
In 2002, defendant Shannon Roberts, M.D. (Roberts), began working for JHOG as
an obstetrician and gynecologist. She also, as an employee of JHOG, served as a
sponsoring physician for Watkins-Brecheen in her work as a midwife. Roberts was
subsequently offered the opportunity to buy into the JHOG partnership, but she declined
and continued to work as an employee of JHOG.
b) The lease agreement
On June 1, 1994, Zadie, Inc. (Zadie), a corporation owned and operated by
Brecheen, entered into a “Hospital ‘Campus’ Lease Agreement” (Lease Agreement) with
the Teton County Hospital District d/b/a St. John’s Medical Center (SJMC), to lease Suite
201 of the St. John’s Professional Office Building. Aplt. App. at 1151. The intended
purpose of the Lease Agreement was to allow JHOG to utilize Suite 201 in the St. John’s
Professional Office Building for its medical practice.
Paragraph 1.2 of the Lease Agreement outlined the lease term:
1.2 Lease Term. The lease term shall be a period commencing on
June 1, 1994 and terminating on May 30, 1995, unless extended or
terminated in accordance with this Agreement.
The Lessee shall have the option to extend this lease for a period of
five additional years to be included as part of the lease term. Any such
extension shall be automatic without any further action unless the Lessee
gives written notice of non-extension to Lessor by certified mail at least 60
days prior to the end of the original lease term. Any extension term will be
3
treated as part of the lease term.
Aplee. App. at 185.
Paragraph 2.3 of the Lease addressed the subject of modifications to the lease
terms:
2.3 Entire Agreement. All representations made by the parties in
negotiations of this Agreement have been incorporated herein; there are no
verbal agreements between the parties or implied duties to modify the terms
and conditions thereof, and any further modification of this Agreement
must be in writing and signed on behalf of the Lessee and Lessor.
Id. at 189.
On May 30, 2000, the final day of the automatic five-year extension period under
the Lease Agreement, SJMC’s Assistant Administrator Virgil Boss reviewed and added
the following handwritten notations to Paragraph 1.2 of the Lease Agreement (which, as
noted, addressed the lease term): “Monthly Rent. $2874.13 + NNM @ 3.50 = $793 mo”
and “Month to Month 5/30/00.” Id. at 185. Boss then met with Brecheen and reviewed
the Lease Agreement and Boss’s handwritten notations. Neither Boss nor Brecheen
initialed or signed the handwritten notations.
c) Dissolution of JHOG and the separation of Drs. Brecheen and Lofaro
Brecheen and Lofaro continued their practice as equal partners in JHOG until early
2007. At that time, they began discussing the possibility of Lofaro purchasing
Brecheen’s shares in JHOG. The two were unable, however, to agree on a price for
Brecheen’s share of JHOG. Id.
In the fall of 2007, Lofaro invited Brecheen to attend a mediation on October 19,
4
2007. Brecheen agreed to do so. Lofaro was represented at the mediation by an attorney,
as were Brecheen and his wife. The mediation ended with no formal written agreement
having been signed and executed by Lofaro and Brecheen. But Lofaro believed that she
and Brecheen had agreed on several matters relevant to the dissolution, and Brecheen
conceded that they “theoretically reached an agreement to dissolve” JHOG, Aplee. App.
at 419, with “some details pending [his] leaving [Suite 201] . . . to be worked out,” id. at
420.
Shortly after the mediation session ended, Lofaro contacted Boss and told him, in
pertinent part, that: she and Brecheen had dissolved JHOG; she and her staff would
remain in Suite 201; Brecheen and his staff would need new space or an alternative space
for eighteen months opposite Suite 201; she and Brecheen would be splitting JHOG’s
accounts receivable and she would be taking JHOG’s furniture; and Brecheen had signed
an Arbitration Agreement.
On October 26, 2007, James Schuessler, SJMC’s CEO, sent a letter to Lofaro
“acknowledging [her] verbal notice . . . that J[HOG] w[ould] be dissolving effective
November 30, 2007, pending final legal documents.” Aplee. App. at 205. The letter
further informed Lofaro: “As Lessee of Suites 201 and 203 in the Professional Office
building, you will be required to have [SJMC] approval for any new business entity
transfer or assignment on December 1, 2007.” Id. Schuessler sent a copy of his letter to
Brecheen and, on November 15, 2007, Brecheen sent a letter to Schuessler
acknowledging receipt of Schuessler’s October 26, 2007 letter. In his letter of November
5
15, 2007, Brecheen stated, in pertinent part, that “dissolution [of JHOG] w[ould] not be
completed by November 30th, [but that] this separation of a long-standing medical
practice w[ould] occur soon,” and that he “w[ould] be moving [his] medical practice off
the campus of SJMC.” Id. at 207.
Following the mediation, Brecheen vacillated openly, in a series of emails
exchanged with Lofaro, regarding whether to keep his practice in Suite 201 or to move it
elsewhere. For example, in an email sent to Lofaro on October 30, 2007, Brecheen
stated, in pertinent part: “Relax about the dissolution. I have no problem with that and the
sooner the better. All that is left undecided about any of this in my mind is where I will
do what my plans involve. You have the ability to decide/influence that . . . your choice.”
Id. at 375. And, on or around October 30, 2007, Brecheen indicated to Lofaro that he
intended to vacate Suite 201 and leave Lofaro responsible for the employees of JHOG.
At or about that time, Brecheen was apparently exploring options that included joining a
medical practice in Wilson, Wyoming, or becoming chief of obstetrics/gynecology at a
hospital in Afton, Wyoming.
Lofaro proceeded to move forward with the intention of keeping her post-JHOG
practice in Suite 201. On October 31, 2007, Boss prepared a new lease agreement for
Suite 201. The tenant was Gros Ventre OB-GYN, LLP, an entity formed by Lofaro and
Roberts. Lofaro executed this lease agreement on or about November 2, 2007.
According to its express terms, this lease agreement became effective on December 1,
2007.
6
On November 5, 2007, Clay Geittmann, an attorney representing Lofaro, sent an
email to Brecheen’s attorney, Scott Klosterman, stating in pertinent part that “[i]n case
the office space bec[ame] an issue for Dr. Brecheen,” Lofaro was “still amicable to
having Dr. Brecheen use the Teton Laser Center space [also located in the SJMC
Professional Building] at no cost to Dr. Brecheen.” Aplee. App. at 382. Three days later,
on November 8, 2007, Geittmann sent an email to Klosterman stating, in pertinent part,
that Lofaro “w[ould] be ready to go with the 12/1 transition date.” Id. at 383.
On December 3, 2007, Andrea Richard, another attorney representing Lofaro, sent
a letter to Klosterman stating, in pertinent part:
Our firm has been asked to assist Dr. Maura Lofaro, MD in connection
with the separation of Dr. Lofaro’s practice from Dr. Brecheen’s practice
and the dissolution of [JHOG].
***
Despite the parties’ agreement on the date for a completed transition, we
understand that Dr. Brecheen is planning to see patients in the office this
week. We are willing to accommodate his need to see patients in the office
this week. As you and Dr. Brecheen know, the existing office space is
being leased by Dr. Lofaro’s new practice effective December 1, 2007. It is
only fair to both Dr. Brecheen and Dr. Lofaro that the overdue transition
between the parties be completed. Thus, Dr. Brecheen’s use of and access
to the office will end on Monday, December 10th, 2007 at 5:00 p.m. * * *
With respect to the legal aspects of the dissolution, those must also be
accomplished as soon as possible and without any further delay. As we
understand it, the parties participated in a mediation on Friday, October 19,
2007. Mark Gifford served as the mediator and the parties were successful
in reaching an agreement. The agreement the parties reached included the
specific terms for the dissolution of [JHOG] . . . .
Id. at 363-64.
7
On December 5, 2007, Lofaro sent an email to Brecheen stating as follows:
Roger - Shannon [Roberts] and I heard that you are moving to an office in
Wilson and perhaps that space is not ready for occupancy. We would like
to speak with you in person to try and figure out a reasonable solution so
that you do not have to move twice in the next month. * * * We would like
to get a timeline from you, work out a solution so that I can get Andrea
Richard off of your back, and we can finish JHOG dissolution/collections/
allocation of equipment in a humane professional manner.
Id. at 367.
On December 6, 2007, Lofaro asked Boss to have the locks on the doors of Suite
201 changed. Lofaro also asked Boss about having Brecheen’s name removed from the
signage.
On Monday, December 10, 2007, Brecheen arrived for work at Suite 201 to see his
scheduled patients. At the end of that day, Lofaro approached Brecheen and “asked him
not to continue to show up to see patients.” Aplt. App. at 1165. Brecheen stated in
response that he would leave Suite 201 when his new office space in Wilson, Wyoming,
was ready.
On that same day, December 10, 2007, Richard (Lofaro’s attorney) sent a letter to
Brecheen’s attorney stating, in pertinent part:
As you know on December 3, 2007, we forwarded a letter concerning
the various deadlines that Dr. Brecheen and Dr. Lofaro agreed to during
their mediation and later memorialized in their Separation and Dissolution
agreement. As we advised in our December 3, 2007, letter, Dr. Brecheen’s
use of and access to the former [JHOG] office will end on Monday,
December 10th, 2007 at 5:00 p.m. Dr. Lofaro had a discussion with Dr.
Brecheen today confirming the same again.
8
As you know, Dr. Lofaro has attempted to work with Dr. Brecheen to
make this transition occur with as little disruption as possible to either
party. Nevertheless, the time has come and the transition, which was due to
be accomplished by November 30, 2007, needs to be completed. Because
the lease to the office space is no longer held by [JHOG], Dr. Brecheen has
no legal right to occupy or use the former [JHOG] office space to see
patients or conduct other activities. We would appreciate your efforts to aid
in this transition.
Aplee. App. at 366.
At approximately 9:00 a.m. on December 11, 2007, Sergeant Alan John of the
Jackson Police Department, accompanied by another officer, arrived in uniform at the
Professional Office Building in which Suite 201 was housed. Lofaro had purportedly
requested their presence. Sergeant John was met by Boss and Jim Schuessler, who
informed him that Brecheen needed to be evicted from Suite 201. When Brecheen
arrived at Suite 201 shortly after 9:00 a.m. that morning, he was met by Sergeant John.
Sergeant John escorted Brecheen inside one of the offices in Suite 201 and informed him:
“I was here to keep the peace, but that I was told that he was being evicted and that I was
asking him to act like a gentleman and allow me to keep the peace.” Aplt. App. at 1166.
Sergeant John then escorted Brecheen out to the parking lot. After speaking briefly,
Brecheen asked Sergeant John if he could go back inside to get his coat and make
arrangements to have an inventory of everything in the office. Sergeant John agreed, and
the two men walked back towards Suite 201. In a hallway outside of Suite 201, Brecheen
and Sergeant John spoke with Boss and Schuessler. Schuessler and Boss confirmed that
they had terminated JHOG’s lease for Suite 201.
9
Brecheen continued to practice medicine at SJMC, albeit not out of Suite 201,
following the events of December 11, 2007. In particular, Brecheen continued to practice
at SJMC through early 2009, when he voluntarily resigned his privileges. Since that time,
Brecheen has been employed by Star Valley Medical Center in Afton, Wyoming, and
Powell Valley Hospital in Powell, Wyoming.
Procedural background
On December 9, 2010, Brecheen, Watkins-Brecheen and JHOG initiated this
action by filing suit against Lofaro, Roberts, SJMC, the Board of Trustees for SJMC,
Schuessler, Boss, and three other officers of SJMC. The complaint alleged the following
claims: “(1) deprivation of Plaintiffs[’] contractual and property rights guaranteed under
the United States and Wyoming Constitutions; (2) interference with Plaintiffs’ medical
practices and legitimate business interests; (3) breach of contract; (4) breach of the
implied covenant of good faith and fair dealing; (5) intentional interference with
contractual relationships; (6) intentional interference with prospective economic
advantage; (7) civil conspiracy; (8) negligent supervision; (9) defamation; and (10)
intentional infliction of emotional distress.” Aplt. App. at 27.
The claims against SJMC, the Board of Trustees for SJMC, Schuessler, Boss and
the three other officers of SJMC were ultimately dismissed by the district court, leaving
only the claims asserted against defendants Lofaro and Roberts. See Dist. Ct. Docket
Nos. 80 (dismissing certain claims against Board of Trustees for SJMC), 170 (dismissing
claims against Schuessler, Boss, and three other SJMC officers), 185 (dismissing
10
remaining claims against SJMC and Board of Trustees).
On March 13, 2013, defendants Lofaro and Roberts filed a joint motion for
summary judgment with respect to the claims asserted against them. This included three
federal claims asserted by Brecheen against Lofaro (deprivation of property without due
process of law, in violation of 42 U.S.C. § 1983; deprivation of liberty interest without
due process of law, in violation of 42 U.S.C. § 1983; and conspiracy to deprive Brecheen
of his constitutionally-protected rights, in violation of 42 U.S.C. § 1985(3)), one federal
claim asserted by Brecheen against Roberts (conspiracy to deprive Brecheen of his
constitutionally-protected rights, in violation of 42 U.S.C. § 1985(3)), and three state law
claims asserted by Brecheen against Lofaro and Roberts (intentional interference with
contractual relationships and unlawful interference with prospective advantage; breach of
the implied covenant of good faith and fair dealing; and intentional infliction of emotional
distress). It also included a single federal claim asserted by Watkins-Brecheen against
Lofaro and Roberts for conspiracy to deprive her of her constitutionally-protected rights,
in violation of 42 U.S.C. § 1985(3), and state law claims asserted by Watkins-Brecheen
against Lofaro and Roberts for breach of the implied covenant of good faith and fair
dealing, and intentional infliction of emotional distress.
On May 24, 2013, the district court issued a written order granting Lofaro’s and
Robert’s motion for summary judgment with respect to the federal claims asserted against
them. In doing so, the district court focused first on plaintiffs’ federal claims. With
respect to the claim that Lofaro deprived Brecheen of property without due process of
11
law, the district court concluded that Brecheen had no protectable property interest in the
lease to Suite 201 on December 11, 2007, when he was evicted from Suite 201. Aplt.
App. at 1561. With respect to the claim that Lofaro deprived Brecheen of a liberty
interest in practicing medicine, the district court concluded that Brecheen had failed to
establish the kind of alteration in legal status necessary to give rise to a cognizable liberty
interest claim. Lastly, the district court concluded that plaintiffs’ assertions that Lofaro
and Roberts “conspired to deprive them of their constitutional rights on the basis of their
age” failed “[b]ecause as a matter of law, an age discrimination claim cannot serve as the
basis of a § 1985(3) claim.” Id. at 1572.
After disposing of plaintiffs’ federal claims against Lofaro and Roberts, the district
court concluded that “this matter [wa]s, at its heart, a relatively straightforward dispute
concerning the termination of the parties’ professional relationship” that gave rise to
“state law claims that [we]re best decided in the state court forum.” Id. at 37.
Consequently, the district court “determine[d] that outright dismissal of the pendant state
law claims, without prejudice, [wa]s . . . appropriate,” particularly in light of the fact that
there was an “ongoing state court action with which th[o]se claims [we]re intertwined.”
Id. at 36.
Judgment was entered in the case on May 24, 2013. Plaintiffs filed a timely notice
of appeal.
II
On appeal, plaintiffs challenge only two parts of the district court’s order granting
12
summary judgment in favor of defendant Lofaro. First, they contend that the district
court erred in rejecting Brecheen’s § 1983 claim that he was deprived by Lofaro of a
constitutionally-protected property interest in Suite 201. Second, they contend that the
district court erred in rejecting Brecheen’s claim, likewise brought under § 1983, that he
was deprived by Lofaro of a liberty interest in practicing medicine. For the reasons
described in greater detail below, we reject plaintiffs’ arguments and conclude that the
district court properly granted summary judgment in favor of Lofaro on both of these
claims.
Standard of review
We review a grant of summary judgment de novo, applying the same standard as
the district court. Braswell v. Cincinnati Inc., 731 F.3d 1081, 1085 (10th Cir. 2013).
“Summary judgment is appropriate if ‘there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.’” Squires v. Breckenridge
Outdoor Educ. Ctr., 715 F.3d 867, 872 (10th Cir. 2013) (quoting Fed. R. Civ. P. 56(a)).
We “may affirm the decision of the district court on any basis for which there is support
in the record.” Sanchez v. Vilsack, 695 F.3d 1174, 1180 (10th Cir. 2012).
Deprivation of a property interest in Suite 201
Brecheen alleged in his complaint that, on December 11, 2007, Lofaro deprived
him of a constitutionally-protected property right by excluding him from Suite 201. To
prevail on this claim under 42 U.S.C. § 1983, Brecheen must establish, in pertinent part,
that he was “deprived of a right ‘secured by the Constitution and the laws’ of the United
13
States.” Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978); see Johnson v. Rodrigues,
293 F.3d 1196, 1203 (10th Cir. 2002).
“For purposes of the Fourteenth Amendment’s Due Process Clause, property
interests must derive from some independent source, such as state law, contract, or other
understandings that give rise to a claim of entitlement.” Eisenhour v. Weber County, 744
F.3d 1220, 1232 (10th Cir. 2014). A possessory interest in property that arises from a
contract, such as a lease, has been held “sufficient to invoke the protection of the Due
Process Clause.” Fuentes v. Shevin, 407 U.S. 67, 87 (1972) (involving possessory
interest in goods that arose under a conditional sales contract); see Thomas v. Cohen, 304
F.3d 563, 576 (6th Cir. 2002) (holding that, “[u]nder Kentucky law, tenants holding
leasehold estates have a recognized property interest”). Under Wyoming state law, a
leasehold tenant has a possessory interest in the real property at issue. See Wolin v.
Walker, 830 P.2d 429, 433-34 (Wyo. 1992); see generally Connaghan v. Eighty-Eight Oil
Co., 750 P.2d 1321, 1323 (Wyo. 1988) (“A person can undertake actual possession of an
interest in real property if the interest is possessory or related to the land in such a way
that it can be actually possessed.”).
The district court in this case properly recognized and applied these principles, and
ultimately concluded that Brecheen lacked a possessory interest in Suite 201. More
specifically, the district court concluded that, “even accepting . . . Brecheen’s version of
the facts as true, as of December 7, 2007, he was aware that [SJMC] had entered into a
lease agreement for Suite 201 with another medical practice [Gros Ventre] effective
14
December 1, 2007.” Aplt. App. at 1560-61. This action on the part of SJMC, the district
court concluded, “constitute[d] ‘affirmative action’ indicating a desire that [Brecheen]
surrender the premises.” Id. at 1561. In short, the district court concluded, under
Wyoming law, Brecheen “held no more than a tenancy by sufferance” as of December 11,
2007, and thus SJMC and Gros Ventre “were perfectly within their rights to exclude . . .
Brecheen from Suite 201 on the morning of December 11, 2007.” Id.
Plaintiffs argue that, contrary to the conclusion reached by the district court,
“Brecheen held a protected property interest in Suite 201, i.e., a periodic tenancy, not a
tenancy by sufferance.” Aplt. App. at 1175. According to plaintiffs, when Boss “made
[hand]written modifications to material terms of the Lease Agreement” on May 30, 2000,
“the parties to th[e] [Lease Agreement] changed so that a new month-to-month lease
agreement was created between SJMC and . . . Brecheen.” Aplt. Br. at 32. “This is also
evidenced,” plaintiffs assert, “by the fact that, through December 2007, SJMC directed its
correspondence and billing invoices relating to Suite 201 to ‘Roger Brecheen, M.D.’” Id.
(quoting Aplt. App. at 1227). Plaintiffs also point to the deposition testimony of Boss, in
which he “testified that ‘month-to-month’ meant ‘the tenant [Dr. Brecheen] has the
flexibility to leave with a month’s notice’ and if the tenant went into default, SJMC
could evict the tenant on a month’s notice.” Id. (quoting Aplt. App. at 1195; emphasis
added by Appellants).
Plaintiffs’ arguments prove to be flawed. To begin with, the evidence in the record
does not support their assertion that the handwritten notations made by Boss on the Lease
15
Agreement resulted in a change to the parties to the Lease Agreement. The Lease
Agreement, by its express terms, was between SJMC and Zadie. Nothing in Boss’s
simple, handwritten notations could reasonably be construed as substituting Brecheen, in
his personal capacity, for Zadie as the tenant. Indeed, Boss’s handwritten notations made
no reference whatsoever to Zadie or Brecheen. Consequently, the record in this case
establishes that any possessory interest in Suite 201 that arose out of the Lease Agreement
belonged to Zadie, not Brecheen personally.1
Furthermore, Boss’s handwritten notations were insufficient to successfully
modify the terms of the Lease Agreement. As noted, Paragraph 2.3 of the Lease
Agreement stated, in pertinent part, that “any further modification of this Agreement must
be in writing and signed on behalf of Lessee and Lessor.”2 Aplee. App. at 189. Although
Boss’s intended modifications were “in writing,” neither Boss nor Brecheen signed to
indicate their approval of those modifications. Consequently, the intended modifications
were not effective, and the Lease Agreement expired by its own terms effective May 30,
2000.
Finally, because the Lease Agreement expired by its own terms, the relationship
between SJMC and Zadie became, by operation of Wyoming Law, a tenancy by
1
The district court’s order granting summary judgment in favor of Lofaro and
Roberts makes reference to Zadie “no longer exist[ing] as a legal entity.” Aplt. App. at
1559. Precisely how and when Zadie ceased existing is unclear from the record.
2
Paragraph 2.3 is consistent with Wyoming law, which requires lease renewals to
be “in writing” and “signed by the parties thereto.” Wyo. Stat. Ann. § 34-2-129 (2013).
16
sufferance. Wyoming law provides that only “a tenancy by sufferance” may exist in
Wyoming “by implication or operation of law.” Wyo. Stat. Ann. § 34-2-128 (2013).
Consequently, “[u]pon the expiration of a term created by lease, . . . there shall be no
implied renewal of the same, for any period of time whatever, either by the tenant holding
over or by the landlord accepting compensation or rent for or during any period of such
holding over.” Id. Instead, “[s]uch holding over by the tenant and acceptance of rent by
the landlord shall constitute only a tenancy by sufferance, with the rights, duties,
obligations and incidents of such tenancy.”3 Id. And, under Wyoming law, “a tenancy by
sufferance can be terminated by re-entry or any affirmative action on the part of the
landlord which indicates that he desires the tenant to surrender the premises occupied by
the latter.” Welch, 159 P.2d at 506. Therefore, it was entirely appropriate for SJMC
officials, as representatives of the landlord, to bar Brecheen from Suite 201 on and after
December 11, 2007.
For these reasons, we conclude that the district court did not err in granting
summary judgment in favor of defendant Lofaro on Brecheen’s claim that Lofaro
deprived him of a constitutionally-protected property right by excluding him from Suite
201.
3
Although Brecheen suggests that a tenancy by sufferance arises only when a
tenant wrongfully holds over past the expiration of the lease term, the Supreme Court of
Wyoming has quite clearly indicated that “[a] tenant by sufferance is one who holds by
permission or indulgence, without any right.” Welch v. Rice, 159 P.2d 502, 524 (Wyo.
1945) (emphasis added); see also Hutchinson v. Taft, 222 P.3d 1250, 1255-56 (Wyo.
2010) (noting that a tenancy at sufferance is a permissive interest and discussing limited
circumstances under which permissive possession by tenant can become hostile).
17
Deprivation of liberty interest
Brecheen also asserted a second § 1983 claim against Lofaro: that Lofaro, by way
of “illegally remov[ing]” him from Suite 201 and contemporaneously making defamatory
statements about him, deprived him of “his ability to practice medicine, a protected
liberty interest.” Aplt. App. at 1168 (plaintiffs’ response to Lofaro’s motion for dismissal
or summary judgment). The district court granted summary judgment in favor of Lofaro
on that claim. In doing so, the district court noted that “the record reveal[ed] several
alternate bases for granting summary judgment” in Lofaro’s favor. Aplt. App. at 1571.
We agree.
As an initial matter, we question whether Brecheen’s claim can survive in light of
our conclusion that he was legally evicted from Suite 201. To be sure, our ruling on that
issue still leaves in place Brecheen’s allegation that Lofaro made defamatory statements
about Brecheen. But Brecheen has consistently argued that it was the combination of
those statements and his illegal removal from Suite 201 that deprived him of a liberty
interest. In other words, Brecheen has never argued that the defamatory statements,
standing alone, resulted in the purported deprivation. And, in any event, our examination
of the record persuades us that a jury could not reasonably make such a finding.
We also conclude that Brecheen failed to present sufficient evidence to allow a
jury to reasonably find that Lofaro acted under color of state law in making the purported
defamatory statements. To prevail on a cause of action under § 1983, a plaintiff must
establish “that some person has deprived him of a federal right,” and “that the person who
18
has deprived him of that right acted under color of state or territorial law.” Gomez v.
Toledo, 446 U.S. 635, 640 (1980). “[T]he under-color-of-state-law element of § 1983
excludes from its reach merely private conduct, no matter how discriminatory or
wrongful.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (internal
quotation marks omitted). In her motion for summary judgment, Lofaro argued, in
pertinent part, that Brecheen had failed to “establish[] that [she] deprived [him] of a right
secured by the Constitution[] or federal law while acting under the color of state law.”
Aplt. App. at 1039; see id. at 1044 (arguing that Brecheen failed to “show[] . . .
government defamation”). Brecheen’s brief in response to Lofaro’s motion for summary
judgment was virtually silent on this point. And, as the district court subsequently noted,
“there [wa]s no evidence suggesting any of th[e] [defendant] state actors participated in,
repeated, or otherwise ratified the defamatory statements allegedly made by . . . Lofaro
about . . . Brecheen, or further that the statements were in any way connected to the
eviction or removal of . . . Brecheen from Suite 201.”4 Id. at 1570.
Accordingly, we conclude that the district court did not err in granting summary
judgment in favor of defendant Lofaro on Brecheen’s claim that Lofaro deprived him of a
4
We acknowledge that the district court did not grant summary judgment in favor
of Lofaro on this basis because it concluded that Lofaro “fail[ed] to set forth any
meaningful argument on this issue.” Aplt. App. at 1571. Our review of Lofaro’s motion
for summary judgment persuades us otherwise. To be sure, Lofaro’s arguments on the
issue were not elaborate. But they were, regardless, sufficient to require some type of
response from Brecheen and to place the issue squarely before the district court.
19
constitutionally-protected liberty interest.5
III
The judgment of the district court is AFFIRMED. Volume 5 of the supplemental
appendix will remain sealed, as will all materials previously submitted as sealed. The
motion to strike the supplemental appendix is DENIED.
Entered for the Court
Mary Beck Briscoe
Chief Judge
5
In granting summary judgment in favor of Lofaro, the district court concluded
that Brecheen had failed to “identify the kind of alteration in legal status necessary to set
forth a cognizable liberty interest claim.” Aplt. App. at 1564. We need not reach that
question.
20