Castanon v. Cathey

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

(1) MIKE LEE CASTANON, and )

(2) ELITE OILFIELD SERVICES, LLC, )

)

Plaintiffs, )

)

v. ) Case No. CIV-18-537-R

)

)

(1) KELLY CATHEY, an individual; )

(2) MIKE CORY, an individual; )

(3) RICHARD BICKLE, an individual; )

(4) DAVID MOORE, an individual; )

(5) DEBBIE SCHAUF, an individual; and )

(6) OKLAHOMA HORSE RACING )

COMMISSION, )

)

Defendants. )

ORDER

EOS Trumpster, a quarter horse owned by Plaintiffs Mike Lee Castanon and Elite

Oilfield Services, LLC, galloped to victory at the Remington Park Racetrack in Oklahoma

City on April 8, 2017. But after the win, Trumpster’s urine tested positive for trace amounts

of Clenbuterol, a therapeutic medication barred for use on quarter horses. Citing this

positive test, the Oklahoma Horse Racing Commission and the Remington Park race

Stewards—together, the authorities overseeing and controlling horse racing—suspended

the license of Trumpster’s trainer, Alfredo Gomez, on April 21, 2017. One collateral

consequence of Gomez’s suspension: another of Plaintiffs’ horses, EOS A Political Win,

was scratched from a race on April 22, 2017, even though the horse had no reported drug

violations. Plaintiffs claim that the actions of the Commission and the Stewards—

especially the scratching of A Political Win—violated their rights. The movants (all

Defendants, save Debbie Schauf) disagree, and they ask this Court to dismiss Plaintiffs’

claims levied against them. Having considered the parties’ filings, see Docs. 7, 9–10, the

Court dismisses Plaintiffs’ federal claims, declines to exercise supplemental jurisdiction

over Plaintiffs’ state law claims, and remands the remainder of the case to the District Court

of Oklahoma County.

I. Background

The Court takes as true all well-pleaded factual allegations in the complaint, views

them in the light most favorable to Plaintiffs, and draws from them all reasonable

inferences in Plaintiffs’ favor. See Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d

1231, 1235 (10th Cir. 2013). This case deals with horse racing in Oklahoma, so the Court

will offer some legal context before it recites the facts. Oklahoma horse racing is governed

by the Oklahoma Horse Racing Act (“Act”), 3A O.S. § 200 et seq., and attendant

regulations.1 The Act creates horse racing’s governing body, the Oklahoma Horse Racing

Commission (“Commission”), see 3A O.S. § 201, which enjoys “plenary power to

promulgate rules and regulations for the forceful control of race meetings” in Oklahoma.

Id. § 203.7; Okla. Admin. Code. § 325:1-1-3. These powers may also be delegated to

Stewards, who directly oversee races. See 3A O.S. §§ 203.4, 204(B)(1); see also Okla.

Admin. Code § 325:20-1-3. The Commission and Stewards, in exercising their broad

powers, “may suspend or revoke any occupation license” for violations of statutory or

1 The Court cites to the 2016 editions of Oklahoma’s Statutes and Administrative Code.

regulatory provisions, or “[a]ny other just cause as determined by the Commission.” 3A

O.S. § 204.2(D); see also id. § 204.3(B) (granting the Commission or the Stewards

authority to “summarily suspend an occupation license” at a race “pending further

proceedings”).2 And, regarding medication of race horses, the Act prohibits

“administration of any drug or medication to a horse prior to or during a horse race” unless

permitted by rule. Id. § 208.11(C).

Regulations further explicate the Stewards’ powers. “The Stewards have general

authority and supervision over all licensees,” “the power to interpret the rules and to decide

all questions not specifically covered by these rules,” and “the power to determine all

questions arising with reference to entries, eligibility and racing.” Okla. Admin. Code

§ 325:20-1-8. “The Stewards may . . . suspend . . . the occupation license of any person

whom they have the authority to supervise,” and they may also suspend a horse from

participating in races if the horse is involved with “[a]ny violation of medication laws and

rules” or “[a]ny suspension . . . of an occupation license . . . .” Id. § 325:1-1-7(a), (c)(2);

see also id. § 325:15-5-10(a) (noting Stewards may suspend license for violations of “any

provision of the Oklahoma Horse Racing Act or of the Rules and Regulations of the

Commission,” or for “any other valid ground or reason”). Specifically, Stewards may

suspend trainers when the urine sample from a horse under their supervision tests positive

for banned drugs or medications. See id. § 325:35-1-5(a) (“Should the chemical analysis,

2 Included within the Commission’s sweeping jurisdiction is the authority to control licensing, suspensions,

drug testing, and exclusions from races. See 3A O.S. §§ 204(A), 204.2. Horse owners, trainers, and jockeys

must obtain licenses from the Commission to participate in racing. See id. § 204.2(A)

urine or otherwise, taken from a horse under his/her supervision show the presence of any

drug or medication . . . it shall be taken as prima facie evidence that the same was

administered by or with the knowledge of the Trainer . . . . At the discretion of the Stewards

. . . the Trainer . . . may be . . . suspended . . . .” (emphasis added)); id. § 325:45-1-6(j) (“It

shall be prima facie evidence that a horse had been administered and carried a drug [or]

medication . . . prohibited by this Section while running a race if . . . a . . . urine . . . sample

or specimen from the horse was taken . . . and . . . the Primary Laboratory detected a drug

[or] medication . . . prohibited by or in excess of Commission-Sanctioned Threshold levels

established by Commission Directive [3A:205.2(H)]. . . . The Affidavit submitted by the

Primary Laboratory shall be supported by urine and/or plasma/serum results.”); see also

id. §§ 325:45-1-4, 325:45-1-5.

Where a trainer is suspended or otherwise unavailable after a horse has been entered

in a race, it falls within the Stewards’ discretion whether to replace the trainer. See id. §

325:20-1-11(b) (“In the absence of the Trainer of the horse, the Stewards may place the

horse in the temporary care of another Trainer of their selection . . . .”); id. § 325:25-1-3

(“All entries . . . are under the supervision of the Stewards . . . and they, without notice,

may refuse . . . the transfer of entries.”); see also id. § 325:35-1-5 (designation of alternative

trainer “shall be made prior to time of entry, unless otherwise approved by the Stewards”).

Critically, a horse may not race unless it is under the care of a trainer in good standing. See

id. § 325:25-1-10 (“[A] horse is ineligible to start in any race if . . . the horse is in the care

of an unlicensed Trainer.”). “Any horse . . . ineligible to start in any race which is entered

. . . may be scratched . . . .” Id. § 325:25-1-12.

The suit’s events take place within this context. Plaintiffs are owners of two racing

quarter horses, EOS Trumpster (“Trumpster”) and EOS A Political Win (“A Political

Win”). Doc. 1-1, at 7. The moving Defendants are (1) the Oklahoma Horse Racing

Commission; (2) Kelly Cathey, the executive director of the Commission; (3) Mike Cory,

the de facto Chief Steward at Remington Park Racetrack; (4) Richard Bickle, a race

Steward; and (5) David Moore, a race Steward. See Doc. 1-1, at 2–3.3 Plaintiffs entered

Trumpster and A Political Win in races at the Remington Park Racetrack in Oklahoma

City, Oklahoma, in April 2017, retaining Alfredo Gomez, a Commission-licensed trainer

and jockey, to care for and ride the horses. Id. On April 8, 2017, Gomez, riding Trumpster,

won the seventh race at Remington Park; following the win, Trumpster submitted to post-

race blood and urine testing. Id. Trumpster’s testing samples were analyzed by the

Industrial Laboratories Company, under contract with the Commission, on April 11, 2017.

Id.4 A final report was issued on April 20, 2017, which indicated that Trumpster’s urine

sample contained a trace positive of Clenbuterol, “a federally approved therapeutic

3 Debbie Schauf, executive director of the Oklahoma Quarter Horse Race Association, is also a defendant

in this matter. See Doc. 1-1, at 3. However, Defendant Schauf has neither filed her own motion to dismiss

nor joined in the instant motion.

4 Plaintiffs allege that Mike Cory “communicated with personnel at the Industrial Laboratories regarding

the testing done on EOS Trumpster before any final report was prepared or sent.” Doc. 1-1, at 7. As a result,

Cory “knew what the Industrial Lab Report would reflect days before a written report was sent.” Id. These

allegations are somewhat tangential, though Plaintiffs seem to include them in their complaint to (1) bolster

their assertion that the Stewards unreasonably delayed notifying Plaintiffs of Trumpster’s positive test

result, see id. at 7–10, and to (2) embellish their contention that the Stewards’ actions were motivated by

improper bias. See id. at 9 (“The Stewards had an ulterior and clearly improper motive in summarily

suspending an Hispanic trainer, which was further intentionally compounded by the exclusion of

Castanon’s horse EOS A Political Win from the futurity . . . .”). As to this latter contention, if Plaintiffs are

attempting to make out a conspiracy or discrimination claim, their allegations are impermissibly conclusory

and undernourished. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (noting that Rule 8(a)(2) “demands

more than an unadorned, the-defendant-unlawfully-harmed-me accusation,” “labels and conclusions,” and

“naked assertions devoid of further factual enhancement” (brackets, internal quotation marks, and citations

omitted)).

medication . . . . widely utilized . . . for active horses.” Id. at 7–8. But under Oklahoma law,

Clenbuterol use is banned in quarter horses, such as Trumpster.5 Following the final report,

the Commission, through Defendant Cory, “telephonically pronounced a summary

suspension” of Gomez. Id. at 8. Gomez’s occupation license was formally suspended by

the Commission the next day—April 21, 2017—which caused all horses entered by Gomez

to be scratched from upcoming races. Id. One of the scratched horses, A Political Win, had

no reported positive drug tests, and was the “5/2 morning line favorite to win the

Remington Park Futurity . . . scheduled . . . on April 22, 2017.” Id. at 9.6 Plaintiffs made

an emergency request for a stay of the Stewards’ ruling, but the Commission’s executive

director, Defendant Cathey, denied the request. Moreover, the Commission and the

Stewards refused Plaintiffs’ request to transfer A Political Win to another trainer so that

the horse could race. Id.

Plaintiffs assert procedural and substantive due process claims under 42 U.S.C. § 1983

against Defendants Cathey, Cory, Bickle, and Moore, and a negligence claim under the

5 Under the Act, the Commission is “authorized to determine by rule which drugs and medications, if any,

may be administered to a horse prior to or during a horse race . . . .” 3A O.S. § 208.11(A). Unless permitted

by rule, the administration of any drug or medication to a horse before or during a race is prohibited. Id. §

208.11(C). The Commission, in its discretion, may suspend the license of any party that violates the Act or

promulgated rules and regulations. Okla. Admin. Code § 325:1-1-6; see also id. §§ 325:1-1-7(a); 325:45-

1-4 (“Except as authorized . . . no drug or medication shall be administered to any horse within 24 hours of

a race in which a horse is entered. Presence of any drug . . . or . . . any substance foreign to the natural horse

. . . may result in disqualification by the Stewards.”). The Directive on Commission-Sanctioned Thresholds

[3A: 205.2(H)], which features prominently in the parties’ briefing, states that, “[a]s of March 1, 2015, . . .

Clenbuterol will now be regarded as [a] prohibited drug[] in Quarter Horses . . . .” See Doc. 9-2, at 2. While

Plaintiffs doubt that Clenbuterol affects horse performance, see Doc. 1-1, at 8–9, their primary contention

is that Clenbuterol’s presence may not be ascertained through an equine urine sample. See generally Docs.

1-1, 9; see also infra note 9.

6 The Remington Park Futurity’s “purse” was over one million dollars. Doc. 1-1, at 9.

Oklahoma Governmental Tort Claims Act against the Commission. See Doc. 1-1, at 10–

16; see also Doc. 7.7 Defendants move to dismiss these claims.

II. Fed. R. Civ. P. 12(b)(6) Motion to Dismiss Standard

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007));

see also Fed. R. Civ. P. 8(a)(2) (“A pleading that states a claim for relief must contain . . .

a short and plain statement of the claim showing that the pleader is entitled to relief . . . .”).

While a complaint “need only give the defendant fair notice of what the claim is and the

grounds upon which it rests,” Khalik v. United Air Lines, 671 F.3d 1188, 1191–92 (10th

Cir. 2012) (ellipsis, internal quotation marks, and citations omitted), “[t]hreadbare recitals

of the elements of a cause of action, supported by mere conclusory statements, do not

suffice.” Iqbal, 556 U.S. at 678. “Thus, the mere metaphysical possibility that some

plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the

complainant must give the court reason to believe that this plaintiff has a reasonable

likelihood of mustering factual support for these claims.” Ridge at Red Hawk, L.L.C. v.

Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis omitted). When assessing a

complaint’s sufficiency, “courts must consider the complaint in its entirety, as well as other

sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in

particular, documents incorporated into the complaint by reference, and matters of which

7 Defendants Cathey, Cory, Bickle, and Moore are sued in their individual capacities and are alleged to

have been acting under color of state law during the events of this case. Doc. 1-1, at 2–3.

a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S.

308, 322 (2007) (citing 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 1357 (3d ed. 2004 and Supp. 2007)).

III. Discussion

Plaintiffs assert federal claims against Defendants Cathey, Cory, Bickle, and

Moore—the individual Defendants—and state law claims against the Commission. See

generally Doc. 1-1. The individual Defendants raise the defense of qualified immunity,

which shields public officials sued in their individual capacities “from undue interference

with their duties and from potentially disabling threats of liability.” Harlow v. Fitzgerald,

457 U.S. 800, 806 (1982). When this defense is raised, officials enjoy a presumption of

immunity—as such immunity is “the norm in private actions against public officials.”

Pahls v. Thomas, 718 F.3d 1210, 1227 (10th Cir. 2013) (internal quotation marks and

citations omitted); see also Apodaca v. Raemisch, 864 F.3d 1071, 1076 (10th Cir. 2017)

(“[Q]ualified immunity protects all officials except those who are plainly incompetent or

those who knowingly violate the law.” (internal quotation marks and citation omitted));

Lewis v. Tripp, 604 F.3d 1221, 1230 (10th Cir. 2010) (“If qualified immunity is to mean

anything, it must mean that public employees who are just doing their jobs are generally

immune from suit.”). “A plaintiff can overcome this presumption of immunity only by

carrying the heavy burden of showing both that (1) the defendant-officer in question

violated one of his [statutory or] constitutional rights, and (2) the infringed right at issue

was clearly established at the time of the allegedly unlawful activity . . . .” Kerns v. Bader,

663 F.3d 1173, 1180 (10th Cir. 2011) (citations omitted). The Court, in its discretion, may

decide which prong of the qualified immunity analysis it will address first, see Pearson v.

Callahan, 555 U.S. 223, 236 (2009), but addressing “the first qualified immunity [prong]

before proceeding to the second . . . . should be the exception, not the rule,” as constitutional

avoidance considerations generally counsel in favor of “proceed[ing] directly to, . . .

address[ing] only, and . . . deny[ing] relief exclusively based on” whether a right was

clearly established. Kerns, 663 F.3d at 1181; see also Camreta v. Greene, 563 U.S. 692,

705 (2011) (“If prior case law has not clearly settled the right, and so given officials fair

notice of it, the court can simply dismiss the claim for money damages. . . . And indeed,

our usual adjudicatory rules suggest that a court should forbear resolving this issue.”

(emphasis original)).

A right is clearly established when a reasonable official would have understood that

what he or she was doing violated that right. See Estate of Reat v. Rodriguez, 824 F.3d 960,

964–65 (10th Cir. 2016). Plaintiffs must identify clearly established law that would have

notified Defendants that their actions were unlawful. See Washington v. Unified Gov’t of

Wyandotte Cty., 847 F.3d 1192, 1202 n.3 (10th Cir. 2017). Plaintiffs may show the law to

be “clearly established” by citing an on-point Supreme Court or Tenth Circuit decision;

alternatively, “the clearly established weight of authority from other courts must have

found the law to be as . . . [P]laintiff[s] maintain[].” Grissom v. Roberts, 902 F.3d 1162,

1168 (10th Cir. 2018) (internal quotation marks and citation omitted). An “on-point

decision” means that the precedent is “particularized to the facts”—that it “involves

materially similar facts” to the case at hand. Apodaca, 864 F.3d at 1076 (10th Cir. 2017);

see also Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (“The dispositive question is whether

the violative nature of particular conduct is clearly established. This inquiry must be

undertaken in light of the specific context of the case, not as a broad general proposition.”

(emphasis, internal quotation marks, and citations omitted)). In other words, on-point

precedent cannot define a right at “a high level of generality,” Ashcroft v. al-Kidd, 563 U.S.

731, 742 (2011); otherwise, “Plaintiffs would be able to convert the rule of qualified

immunity . . . into a rule of virtually unqualified liability simply by alleging violation of

extremely abstract rights.” White v. Pauly, 137 S. Ct. 548, 552 (2017) (ellipsis original)

(alterations, brackets, internal quotation marks, and citation omitted). Rather, “existing

precedent must have placed the statutory or constitutional question beyond debate.” Kisela

v. Hughes, 138 S. Ct. 1148, 1152 (2018) (internal quotation marks and citation omitted).8

(A) Procedural Due Process

Plaintiffs first claim that the individual Defendants deprived them of due process

when infringing on their protected interests. Doc. 1-1, at 10–12. “The requirements of

procedural due process apply only to the deprivation of interests encompassed by the

Fourteenth Amendment’s protection of liberty and property.” Bd. of Regents of State Colls.

v. Roth, 408 U.S. 564, 569 (1972). Thus, “[t]o assess whether an individual was denied

procedural due process, courts must engage in a two-step inquiry: (1) did the individual

possess a protected interest such that the due process protections were applicable; and, if

8 In light of the significant impediment they pose to plaintiffs, “qualified immunity questions should be

resolved at the earliest possible stage of a litigation,” so as “to protect public officials from the broad-

ranging discovery that can be peculiarly disruptive of effective government.” Anderson v. Creighton, 483

U.S. 635, 646 n.6 (1987) (internal quotation marks and citation omitted). Thus, while typical motion-to-

dismiss standards still apply even when defendants invoke qualified immunity, these standards “may have

greater bite” in light of the “special interest” in resolving qualified immunity issues quickly and efficiently.

Robbins v. Oklahoma, 519 F.3d 1242, 1249 (10th Cir. 2008).

so, then (2) was the individual afforded an appropriate level of process.” Merrifield v. Bd.

of Cty. Comm’rs for Cty. of Santa Fe, 654 F.3d 1073, 1078 (10th Cir. 2011) (internal

quotation marks and citation omitted).

“Liberty interests can either arise from the Constitution or be created by state law.”

Cordova v. City of Albuquerque, 816 F.3d 645, 656–57 (10th Cir. 2016). “For state law to

create a liberty interest, it must establish substantive predicates to govern official

decisionmaking and mandate an outcome when relevant criteria have been met.” Elwell v.

Byers, 699 F.3d 1208, 1214 (10th Cir. 2012). “If state law establishes a substantive

predicate without mandating an outcome, the law creates nothing more than a right to

process which is not a constitutionally cognizable liberty interest.” PJ ex rel. Jensen v.

Wagner, 603 F.3d 1182, 1200 (10th Cir. 2010); see also Olim v. Wakinekona, 461 U.S.

238, 249 (1983) (“If the decisionmaker is not required to base its decisions on objective

and defined criteria, but instead can deny the requested relief for any constitutionally

permissible reason or for no reason at all, the State has not created a constitutionally

protected liberty interest.” (internal quotation marks and citations omitted)); Elwell, 699

F.3d at 1214 (“[W]hen state law creates a mandatory procedure but does not guarantee a

particular substantive outcome, it does not confer a protected liberty interest.”).

Property interests, on the other hand, “are not created by the Constitution,” but

rather “are created and . . . defined by existing rules or understandings that stem from an

independent source such as state law—rules or understandings that secure certain benefits

and that support claims of entitlement to those benefits.” Roth, 408 U.S. at 577; see also

Milcor I, LLC v. Luers, 764 F. App’x 747, 753 (10th Cir. 2019) (“In order to create a

property interest, the state statute or regulation must give the recipient a legitimate claim

of entitlement to the benefit allegedly deprived.” (internal quotation marks, citations, and

brackets omitted)). To have a property interest in a benefit, then,

a person clearly must have more than an abstract need or desire for it. He

must have more than a unilateral expectation of it. He must, instead, have a

legitimate claim of entitlement to it. It is a purpose of the ancient institution

of property to protect those claims upon which people rely in their daily lives,

reliance that must not be arbitrarily undermined.

Roth, 408 U.S. at 577; see also Logan v. Zimmerman Brush Co., 455 U.S. 422, 430 (1982)

(“The hallmark of property . . . is an individual entitlement grounded in state law, which

cannot be removed except ‘for cause.’”). “Detailed procedures in a state statute or

regulation,” however, “are not, by themselves, sufficient to create a property interest.”

Greene v. Barrett, 174 F.3d 1136, 1140 (10th Cir. 1999).

The parties spend page after page jockeying over the intricacies of Oklahoma’s

regulatory landscape. Plaintiffs in particular are keen on litigating the Stewards’ decision

to suspend Gomez’s license after Trumpster’s positive urine test.9 The Court need not and

9 Indeed, the parties dedicate substantial portions of their briefs to whether the Stewards’ decision to

suspend Gomez’s license was based on an improper urinalysis and, therefore, arbitrary. See Doc. 7, at 11–

15, 19–21; Doc. 9, at 8–12, 15–16. Plaintiffs rest their argument on a Commission-issued Directive dealing

with permissible drug and medication procedures for race horses. See Doc. 9-2. As Plaintiffs read this

Directive, the Stewards or Commission may not suspend a trainer’s license for a drug-related infraction

unless that infraction is based on an equine plasma/serum sample—not a urine sample. See Doc. 9 at 9-11.

Thus, because Gomez’s suspension was predicated on a positive drug test from Trumpster’s urine sample,

not blood or plasma, the suspension contravened applicable statutes and regulations. Doc. 1-1, at 7–9. In

support, Plaintiffs cite an unpublished order from June 1, 2017, issued by the District Court of Oklahoma

County in Willis v. Oklahoma Horse Racing Commission, No. CJ-2017-2810, in which the district judge

held that the Directive limited positive drug tests to blood samples. See Doc. 9-1, at 8–9.

To start, Plaintiffs’ outsized reliance on the Directive is curious, given their assertion that it is ultra

vires. See Doc. 1-1, at 6 n.1 (“The OHRC failed to comply with fundamental rulemaking procedures for

development of this directive. If followed, that process would have required a public notice, comment

period and room for judicial review for any final rule promulgated.”). As to Willis, unpublished district

court orders are without precedential or persuasive value; thus, neither Plaintiffs nor this Court may rely

upon them. See Okla. Sup. Ct. R. 1.200(c)(5) (“Because unpublished opinions are deemed to be without

will not arbitrate these collateral fights, choosing instead to heed the Supreme Court’s

admonition to “think hard, and then think hard again, before turning small cases into large

ones.” Camreta, 563 U.S. at 707. Faced with the individual Defendants’ invocation of

qualified immunity, Plaintiffs must point to a clearly established right that Defendants

violated. See Milcor I, 764 F. App’x at 752. Plaintiffs nominate five “candidates” for

constitutionally protected liberty or property interests: (1) a right to take part in a horse

race (or, more specifically, the right to participate in a race where the horse is already

entered and has no drug violations); (2) a right to notice of impending adverse action and

a meaningful opportunity to be heard; (3) a right to switch trainers to allow an eligible

value as precedent and are not uniformly available to all parties, opinions so marked shall not be considered

as precedent by any court or cited in any brief or other material presented to any court . . . .”); Blue Circle

Cement, Inc. v. Bd. of Cty. Comm’rs of the Cty. of Rogers, 27 F.3d 1499, 1513 (10th Cir. 1994) (“Because

under Oklahoma law neither the district court nor our court may rely upon . . . an unpublished opinion, we

must disregard that authority.”); Burns v. Cline, 2016 OK 121, ¶ 3 n.4, 387 P.3d 348, 351 (finding that the

parties’ citation to unpublished district court judgments violated Oklahoma Supreme Court Rule 1.200(c)).

More significantly, Plaintiffs’ argument, at bottom, amounts to a collateral challenge to the

Stewards’ suspension of Gomez’s license. Gomez had his license suspended because of Trumpster’s

positive test result for Clenbuterol. Id. at 8; see also Okla. Admin. Code § 325:35-1-5(a). Plaintiffs contend

this suspension was improper because applicable regulations deemed urinalysis inadequate to establish the

presence of Clenbuterol. Gomez is not a party to this suit, and “plaintiff[s] generally must assert [their] own

legal rights and interests, and cannot rest [their] claim to relief on the legal rights or interests of third

parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975). If Plaintiffs intend to challenge the suspension of

Gomez’s license, then they have failed to make a showing sufficient to justify third-party standing. See

Lane v. Simon, 495 F.3d 1182, 1187 (10th Cir. 2007) (“Third-party standing requires not only an injury in

fact and a close relation to the third party, but also a hindrance or inability of the third party to pursue his

or her own claims.” (internal quotation marks and citations omitted)); see also The Wilderness Soc’y v.

Kane County, 632 F.3d 1162, 1168 (10th Cir. 2011) (“The prudential standing doctrine encompasses

various limitations, including the general prohibition on a litigant’s raising another person’s legal rights.”

(brackets, internal quotation marks, and citations omitted)). Neither have Plaintiffs shown that they

themselves had a property interest in Gomez’s license. As well, Plaintiffs have indicated no liberty or

property rights violation vis-à-vis Trumpster; nowhere in the complaint do Plaintiffs allege that their

licenses as owners were suspended, or that Trumpster was forced to forfeit the prize money he won in his

race. Trumpster’s urine sample, then, bears on this case only insofar as it set off a chain of events leading

to A Political Win’s scratch. Oklahoma’s taxonomy of equine bodily fluids, though thoroughly expounded

upon in the briefing, is at most marginally related to the bedrock questions animating Plaintiffs’ due process

claims and Defendants’ qualified immunity defenses.

horse to compete; (4) a right not to have a horse scratched from a race based on another

horse’s positive drug test; and (5) a right to pre-deprivation judicial review. See Doc. 9, at

13–16.

First, several of these “rights candidates” do not qualify as constitutionally protected

interests at all, regardless of whether they are classed as “liberty interests” or “property

interests.”10 Neither are any of Plaintiffs’ purported rights “liberty interests” to which due

process protections apply. Plaintiffs’ liberty interest argument turns entirely on the

limitations Oklahoma has placed on official decision-making: because race Stewards do

not enjoy unbridled discretion, say Plaintiffs, Oklahoma has created liberty interests. See

Doc. 9, at 14–16. But in support of this argument Plaintiffs cite only the procedural

limitations imposed on agencies by Oklahoma’s Administrative Procedures Act, 75 O.S. §

10 For example, a “right to process,” on its own, is not a constitutionally protected liberty or property

interest:

What constitutes a liberty or property interest within the meaning of the Fourteenth

Amendment is not always easy to determine. . . . Liberty and property are broad and

majestic terms that relate to the whole domain of social and economic fact. But they are

not unlimited in scope. In particular, the protected interests are substantive rights, not rights

to procedure. As the Supreme Court wrote in Olim v. Wakinekona, 461 U.S. 238 (1983),

“[A]n expectation of receiving process is not, without more, a liberty interest protected by

the Due Process Clause.” Id. at 250 n. 12. “Process is not an end in itself,” it explained. Id.

at 250. “Its constitutional purpose is to protect a substantive interest to which the individual

has a legitimate claim of entitlement.” Id. Thus, an entitlement to nothing but procedure

cannot be the basis for a liberty or property interest.

Elliott v. Martinez, 675 F.3d 1241, 1245 (10th Cir. 2012) (additional brackets, ellipsis, internal quotation

marks, and citations omitted); see also Crown Point I, LLC v. Intermountain Rural Elec. Ass’n, 319 F.3d

1211, 1216 (10th Cir. 2003) (“It is well established that the mere existence of an entitlement to a hearing

under state law, without further substantive limitation, does not give rise to an independent substantive

property interest protected by the [F]ourteenth [A]mendment.” (brackets, internal quotation marks, and

citation omitted)); Doyle v. Okla. Bar Ass’n, 998 F.2d 1559, 1570 (10th Cir. 1993) (“The mere expectation

of receiving a state afforded process does not itself create an independent liberty interest protected by the

Due Process Clause.”). Thus, Plaintiffs’ rather tautological assertion that they were entitled to due process

before their due process rights were violated, see Doc. 9, at 13–14, 16, is unavailing.

250 et seq., and broad judicial admonitions against arbitrary and capricious agency action.

See id. (citing 75 O.S. § 322 and State ex rel. Bd. of Trs. of Teachers’ Retirement Sys. v.

Garrett, 1993 OK CIV APP 29, 848 P.2d 1182). As stated, an expectation of receiving

process, without more, does not give rise to a liberty interest. See supra note 10. And

Plaintiffs point to no objective, substantive standards mandating particular outcomes—a

necessary predicate for liberty interests where official discretion is at issue. Thus, Plaintiffs

fail to show that any of their purported rights qualify as liberty interests protected by the

Fourteenth Amendment.

Plaintiffs, likewise, fail to show that their purported rights qualify as constitutionally

protected property interests. Plaintiffs offer no cases recognizing their rights candidates as

property interests, and what legal language Plaintiffs do cite is of the highly generalized

variety the Supreme Court ranks as unhelpful in the qualified immunity context. What’s

more, analogous cases the Court has located—scant as they are—indicate that Plaintiffs’

proposed rights, such as a lost opportunity to compete for prize money, are not

constitutionally protected property interests. Cf., e.g., Torrez v. Julian, No. CIV 01-720

BB/LCS, 2002 WL 35649717, at *8 (D.N.M. Aug. 8, 2002) (recognizing that “loss of

opportunity for a possible promotion in the future is not a protected property interest”).

Thus, as Plaintiffs have not demonstrated they had legitimate claims of entitlement to any

of the purported benefits or opportunities they were allegedly denied, no property interests

are at issue here.

But regardless of whether Plaintiffs’ allegations amount to liberty or property

interests, the individual Defendants are shielded by qualified immunity because Plaintiffs

have not shown that any of their alleged protectable interests were clearly established at

the time of the events in question. Crucially, Plaintiffs’ cited cases offer little more than

sweeping generalities; factually dissimilar circumstances; or unpublished, non-

precedential dispositions from state trial courts.11 Such legal authority is insufficient to

overcome the high hurdle of qualified immunity’s second prong.

In sum, the crucial element missing from Plaintiffs’ narrative is a constitutionally

protected interest—or, more to the point, a protected interest that was clearly established

when these events transpired. Nowhere do Plaintiffs allege that the individual Defendants

suspended their licenses, barred them from the racetrack, or ordered them to forfeit

Trumpster’s prize money. Plaintiffs cite no cases recognizing a constitutionally protected

11 First, Plaintiffs rely on passages from Supreme Court decisions outlining the broad contours of Due

Process analysis. See Doc. 9, at 13–16, 26–29 (citing, among other cases, Board of Regents of State Colleges

v. Roth, 408 U.S. 564, 577 (1972), and Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314

(1950). Given “the Supreme Court’s repeated admonition not to define clearly established law at a high

level of generality, Cox v. Glanz, 800 F.3d 1231, 1245 n.6 (10th Cir. 2015) (brackets, internal quotation

marks, and citation omitted), Plaintiffs’ reliance on general propositions of law fails to show that the

individual Defendants’ conduct in these particular circumstances violated any of Plaintiffs’ liberty or

property interests. See al-Kidd, 563 U.S. at 742 (“The general proposition, for example, that an

unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the

violative nature of particular conduct is clearly established.”); Cox, 800 F.3d at 1247 n. 8 (“[Plaintiff] cannot

discharge her burden [to show that the law was clearly established] by relying upon authorities that do no

more than establish general legal principles—even if those principles are apposite . . . .”). Second, Plaintiffs’

reliance on cases dealing generally with horse racing, see Doc. 9, at 28, is misplaced, as these cases are not

only factually distinguishable from the case at bar, but also lack precedential value and fail to show that the

weight of authority has clearly established the rights Plaintiffs allege were violated. See Porter v. DiBlasio,

93 F.3d 301, 305–07 (7th Cir. 1996) (considering what process was due before state could permanently

deprive owner of property interest in horses); Gulotta v. New Jersey Racing Comm’n, A-1774-12T3, 2014

WL 4375668, at *9–10 (N.J. Super. Ct. App. Div. Sept. 5, 2014) (grappling with granting reciprocity to

out-of-state ruling barring owner’s horse from racing and ordering forfeiture of prize money); Goldstein v.

State Horse Racing Comm’n, 557 A.2d 1183, 1185 (Pa. Commw. Ct. 1989) (recognizing due process

violation when commission ordered owner to return prize money without notice and a hearing). Finally,

Plaintiffs cite an Oklahoma state district court case to show that the impropriety of the Stewards’ actions

was clearly established at the time of the events in question. See Doc. 9, at 28–29 (citing April 17, 2017,

order issued by the District Court of Oklahoma County in McLean v. Oklahoma Horse Racing Commission,

CJ-2017-2206, attached as Exhibit 3 to Plaintiffs’ response). Plaintiffs may not rely on unpublished district

court orders, and the Court will not consider them. See supra note 9.

interest in A Political Win’s race slot, or in transferring a horse already entered in a race

from one trainer to another, or in any of the other procedures, benefits, or opportunities on

which Plaintiffs hope to rely. Neither can Plaintiffs anchor their procedural due process

claim to their collateral challenge of Gomez’s suspension and the urinalysis from which

this case’s facts flow. Thus, to the dispositive question in qualified immunity cases—was

the violative nature of particular conduct clearly established?—the answer, here, is no. See

Mullinex, 136 S. Ct. at 308. This answer entitles the individual Defendants to qualified

immunity. Plaintiffs’ § 1983 procedural due process claims are, therefore, dismissed.

(B) Substantive Due Process

Plaintiffs also claim that the individual Defendants violated their substantive due

process rights. As the Tenth Circuit recently explained,

the Supreme Court recognizes two types of substantive due process claims:

(1) claims that the government has infringed a fundamental right; and (2)

claims that government action deprived a person of life, liberty, or property

in a manner so arbitrary it shocks the judicial conscience. We apply the

fundamental-rights approach when the plaintiff challenges legislative action,

and the shocks-the-conscience approach when the plaintiff seeks relief for

tortious executive action. . . . Executive action that shocks the conscience

requires much more than negligence. Even the actions of a reckless official

or one bent on injuring a person do not necessarily shock the conscience.

Conduct that shocks the judicial conscience is deliberate government action

that is arbitrary and unrestrained by the established principles of private right

and distributive justice. To show a defendant’s conduct is conscience

shocking, a plaintiff must prove a government actor arbitrarily abused his

authority or employed it as an instrument of oppression. The behavior

complained of must be egregious and outrageous.

Doe v. Woodard, 912 F.3d 1278, 1300 (10th Cir. 2019) (internal quotation marks,

paragraphs, and citations omitted), cert. denied sub nom. I.B. v. Woodard, No. 18-1173,

2019 WL 1116409 (U.S. May 20, 2019); see also Lindsey v. Hyler, 918 F.3d 1109, 1116

(10th Cir. 2019) (“This [arbitrary or conscience-shocking standard] is exacting. Only the

most egregious official conduct can be said to be arbitrary in the constitutional sense. . . .

Challenged actions must demonstrate a degree of outrageousness and a magnitude of

potential or actual harm that is truly conscience-shocking.” (internal quotation marks,

citations, paragraphs, and brackets omitted)).

Plaintiffs specify that “[t]his case implicates the arbitrary governmental action

prong of substantive due process.” Doc. 9, at 21. The individual Defendants again invoke

qualified immunity, thereby foisting upon Plaintiffs the two-part burden of showing that

Defendants’ actions “violated a . . . constitutional or statutory right” and, if they did, “that

the right was clearly established at the time” of Defendant’s conduct. Leiser v. Moore, 903

F.3d 1137, 1139 (10th Cir. 2018) (internal quotation marks and citation omitted). As with

their procedural due process claims, Plaintiffs fail to carry this burden. Plaintiffs offer no

support for their theory that they were deprived of liberty or property rights, which alone

is fatal to their claims. Moreover, none of Plaintiffs’ allegations, in isolation or in the

aggregate, come close to the “egregious and outrageous” governmental conduct necessary

for a substantive due process claim.12 And beyond their allegations, Plaintiffs offer no cases

clearly establishing that the individual Defendants’ conduct and decision-making violated

Plaintiffs’ rights in a conscience-shocking manner. Therefore, “[b]ecause [Plaintiffs] have

12 That Plaintiffs fall short of this “egregious and outrageous” bar is clear simply by juxtaposing the events

here against cases involving outrageous and conscience-shocking conduct. See Rochin v. California, 342

U.S. 165, 172 (1952) (judicial conscience shocked where sheriff forced an individual to vomit by pumping

his stomach); T.D. v. Patton, 868 F.3d 1209, 1213 (10th Cir. 2017) (judicial conscience shocked where a

social worker’s actions led to a minor being physically and sexually abused); see also Doe v. Woodard, 912

F.3d 1278, 1300 (10th Cir. 2019) (citing Rochin and Patton as illustrating outrageous and conscience-

shocking behavior).

failed to demonstrate that [the individual Defendants] violated a constitutional right—let

alone a constitutional right that was ‘clearly established’ at the time of these events,”

Lindsey, 918 F.3d at 1116—these Defendants are entitled to qualified immunity, and

Plaintiffs’ § 1983 substantive due process claims are dismissed.13

(C) Remaining State-Law Claims

The only claims remaining after dismissal of Plaintiffs’ § 1983 claims are a tortious

interference with prospective economic relations claim against Defendant Debbie Schauf,

who is not a movant, and a negligence claim against the Commission.14 This court “may

decline to exercise supplemental jurisdiction” over a state-law claim when it “has

dismissed all claims over which it has original jurisdiction . . . .” 28 U.S.C. § 1367(c)(3).

The court’s “decision whether to exercise that jurisdiction . . . is purely discretionary.”

Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009) “When all federal claims

have been dismissed, the court may, and usually should, decline to exercise jurisdiction

over any remaining state claims.” Koch v. City of Del City, 660 F.3d 1228, 1248 (10th Cir.

2011) (internal quotation marks and citation omitted); see also Carnegie-Mellon Univ. v.

13 In Count 3 of their complaint, Plaintiffs also seek declaratory and injunctive relief against Defendants

Cathey, Cory, Bickle, and Moore based on their § 1983 claims. See Doc. 1-1, at 13–14. Because the Court

has dismissed the substantive § 1983 claims, any associated request for injunctive or declaratory relief is

accordingly denied. See Hubbard v. Oklahoma ex re. Okla. Dep’t of Human Servs., 759 F. App’x 693, 715

n.15 (10th Cir. 2018). Plaintiffs also seek declaratory and injunctive relief against the Commission. But, as

explained above, Plaintiffs’ § 1983 allegations are fatally deficient—Plaintiffs did not sufficiently allege a

constitutionally protected liberty or property interest, and they allege no conduct shocking to the judicial

conscience. See supra Section III(A)–(B). Thus, as with the individual Defendants, Plaintiffs’ allegations

are unable to support a request for injunctive and declaratory relief against the Commission.

14 Plaintiffs plead a request for punitive damages as a “claim” against all Defendants, but “[i]n Oklahoma,

punitive damages are generally considered to be an element of recovery of the underlying cause of action;

a request for punitive damages is not a separate cause of action.” See Greene v. Brothers Steel Erectors,

LLC, CIV-18-484-R, 2019 WL 1848557, at *1 (W.D. Okla. April 24, 2019)

Cohill, 484 U.S. 343, 350 n.7 (1988) (“[I]n the usual case in which all federal-law claims

are eliminated before trial, the balance of [discretionary] factors to be considered under the

pendant jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will

point toward declining to exercise jurisdiction over the remaining state-law claims.”);

Cantwell v. De La Garza, No. CIV-18-272-D, 2019 WL 2166541, at *4 (W.D. Okla. May

17, 2019) (“Tenth Circuit law is clear that if federal claims are dismissed before trial,

leaving only issues of state law, the federal court should decline the exercise of jurisdiction

by ..., ina removed case, remanding the case to state court.” (internal quotation marks and

citations omitted)). In their joint notice of removal, Defendants contend that this Court has

original federal question jurisdiction over Plaintiffs’ § 1983 claims pursuant to 28 U.S.C.

§ 1331, and supplemental jurisdiction over Plaintiffs’ state law claims pursuant to 28

U.S.C. § 1367. See Doc. 1, at 2. Accordingly, having dismissed Plaintiffs’ federal claims,

the Court declines to exercise supplemental jurisdiction over Plaintiffs’ state law claims

and remands the case to the District Court of Oklahoma County.

IV. Conclusion

For the reasons stated above, the Court DISMISSES Plaintiffs’ § 1983 claims and

REMANDS the case to the District Court of Oklahoma County.

IT IS SO ORDERED this 11" day of July, 2019.

UNITED STATES DISTRICT JUDGE

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