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Ridgeway County Court
APPELLATE DIVISION
Submitted July 6, 2021 Decided July 8, 2021
No. CCRC-AP-1347
TOMSKIPETSKI5, PLAINTIFF-APPELLANT
v.
LEWISMEDVEDEVA, IN HIS OFFICIAL
CAPACITY AS CHIEF OF THE PALMER POLICE
DEPARTMENT,
PALMER POLICE DEPARTMENT, DEFENDANT-
APPELLEES
On Appeal from the Ridgeway County Court, Case No. CCRC-CV-
1308, Judge Antradz.
DANNLABS, The Firm, LLP, JEDISTORMTROOPER0625, The Firm,
LLP, ASIANIBLE, The Firm, LLP, Ridgeway County, Ridgeway, for
plaintiff-appellant.
JAREDFT45, Assistant District Attorney, COMMISSIONER_JASON,
Assistant District Attorney, SITEOWNER, District Attorney, Office of
the District Attorney, Palmer, Ridgeway, for defendants-appellees.*
* A majority of the judges on the panel voted to forgo oral argument.
See Rid. R. App. P. 13(a). The case was therefore submitted and
decided on the briefs.
Before: NIXON, POWELL, and MARSHALL, County Judges.
PER CURIAM.
The appeal before this panel begins with an action in the
County Court filed by Plaintiff-Appellant Mr. Tomskipetski5
against Defendant-Appellee Mr. LewisMedvedeva and the
Palmer Police Department. Before us, Mr. Tomskipetski5
sought monetary reparations, a restatement into the
department, and a reform of the police department after
being fired from an Internal Affairs Investigation. The action
was dismissed with prejudice. Consequently, Mr.
Tomskipetski5 appealed, suggesting that the judge was
blinded by corruption from the Palmer Police Department
High Command and that the dismissal was not coincident
with applicable case law. For the reasons stated below, we
affirm.
I
Because this case stems from a motion to dismiss, we must
accept as true all factual allegations in the complaint. See, e.g.,
Anza v. Ideal Steel Supply Co., 547 U.S. 451, 453 (2006);
Leatherman v. Tarrant Cty. Narcotics Intelligence and
Coordination Unit, 507 U.S. 163, 164 (1993).1 According to
Tomskipetski5’s complaint, LewisMedvedeva, Chief of the
Palmer Police Department (hereinafter PPD), placed
Skipetski on administrative leave on June 11th, 2021.
Medvedeva had opted to place Skipetski on administrative
leave due to an ongoing investigation by the PPD’s Internal
Affairs Unit. Four days later, Skipetski was terminated by
high command members of both the PPD and the PPD’s
1 The requirement that we accept all factual allegations as true does
not extend to legal conclusions, even those “couched as factual
allegations.” Papasan v. Allain, 478 U.S. 265, 286 (1986).
3
Internal Affairs Unit, allegedly for “Violation of SOP,” 2
“Violation of NDA,” and “Criminal Offenses.”
Skipetski then filed suit in the County Court against both
Medvedeva and the PPD, alleging that his termination was
unlawful pursuant to 5 R. Stat. § 315, which allows for judicial
review of administrative actions, and 5 R. Stat. § 401, a
criminal tort for official misconduct. Medvedeva and the PPD
both asserted that Skipetski’s termination was indeed lawful,
and filed a motion to dismiss for failure to state a claim upon
which relief could be granted under Rid. R. Civ. P. 11(b)(6).
In addition, the defendants argued that various forms of
relief that Skipetski requested could not be granted under
various statutes.
The County Court granted defendants’ motion to dismiss
with prejudice. Tomskipetski5 v. LewisMedvedeva, et al.,
CCRC-CV-1308 (R.C.C. June 20th, 2021). The trial judge
found that defendants were correct in asserting that
Skipetski could not base his suit off of 5 R. Stat § 401 because
official misconduct was a criminal tort. In addition, the Court
found that Skipetski had not met the pleading standard set
out in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and
Ashcroft v. Iqbal, 556 U.S. 662 (2009).3 Skipetski promptly
appealed the dismissal.
II
Rid. R. Civ. P. 9(a)(2) states that a pleading that states a
claim for relief must include “a short and plain statement of
the claim showing that the pleader is entitled to relief.” A case
2 According to the Palmer Police Department, SOP stands for
“Standard Operating Procedure.” Def.’s Response to Pl.’s
Complaint, at 2.
3 The trial judge disposed of the pleading standard by merely
stating that Skipetski had not stated a “direct claim, [but] a
collection of various facts.” CCRC-CV-1308, at 4.
4
may be dismissed if there is a failure to state a claim upon
which relief can be granted. Rid. R. Civ. P. 11(b)(6). The text
of these rules appears verbatim in the Federal Rules of Civil
Procedure at Rules 8(a)(2) and 12(b)(6), respectively. Because
both Twombly and Iqbal were based on Fed. R. Civ. P.
12(b)(6), and because Rule 12(b)(6) is identical to our Rule
11(b)(6), we hold that the standard from the two cases apply
to pleadings filed with the County Court as well as motions to
dismiss for failure to state a claim upon which relief can be
granted under Rule 11(b)(6).
We review a dismissal for failure to state a claim upon
which relief can be granted under Rid. R. Civ. P. 11(b)(6) de
novo. Cf. Santa Fe All. for Public Health and Safety v. City
of Santa Fe, 993 F.3d 802, 811 (10th Cir. 2021). Under de novo
review, we treat the issue as if it were to be before us for the
first time. “When de novo review is compelled, no form of
appellate deference is acceptable.” Salve Regina College v.
Russell, 499 U.S. 225, 238 (1991).
We review whether a trial judge should have recused
themselves from a case for abuse of discretion. A trial court
necessarily abuses its discretion if it bases its ruling “on an
erroneous view of the law or on a clearly erroneous
assessment of the evidence.” Cooter & Gell v. Hartmarx
Corp., 496 U.S. 384, 405 (1990).
A -
Twombly/Iqbal
Skipetski first claims that the trial court erred in holding
that his complaint was insufficient under Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S.
662 (2009). We disagree.
Under Rid. R. Civ. P. 9(a)(2), pleadings that state a claim
must include “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
5
Both the parties and the trial court have not explicitly
stated what the pleading standard under Twombly and Iqbal
are. The trial court merely held that Skipetski’s complaint
merely contained “a collection of various facts.” So what does
the pleading standard under those two cases entail?
Under the standard laid out in Twombly, supra, and Iqbal,
supra, to survive a motion to dismiss for failure to state a
claim upon which relief can be granted, a “complaint must
contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Wood v. Moss, 572
U.S. 744, 757-758 (2014) (quoting Iqbal, 556 U.S., at 678)
(internal quotation marks omitted)). 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. Iqbal, supra.
The plausibility standard is not akin to a “probability
requirement,” but it asks for more than a sheer possibility
that a defendant has acted unlawfully. Id. The pleading
standard Rule 9 announces does not require detailed factual
allegations, but it demands more than an unadorned, the-
defendant-unlawfully-harmed-me accusation. Id. (quoting
Twombly, 550 U.S., at 555). In addition, as we stated above,
we are not required to take as true legal conclusions, even
those “couched as factual allegations.” Papasan v. Allain, 478
U.S. 265, 286 (1986), because while legal conclusions can
provide the framework of a complaint, they must be
supported by factual allegations. Iqbal, supra, at 679.
Furthermore, just because a plaintiff has pleaded factual
allegations that are “‘merely consistent with’ a defendant’s
liability,” that does not mean the plaintiff has met the
standard under Rule 11(b)(6). The purpose of the plausibility
standard is to determine whether a plaintiff has adequately
shown (not alleged) that he is entitled to his requested relief.
See Iqbal, 556 U.S., at 678-679. With these points in mind, we
turn to Skipetski’s complaint.
6
Skipetski bases his case off of a criminal tort statute, 5 R.
Stat. § 401, and an administrative action review tort, 5 R. Stat.
§ 315. As the lower court correctly recognized, Skipetski
cannot base his suit off of a criminal tort statute, because he
is a private citizen. We therefore only analyze 5 R. Stat. § 315
in his case.
5 R. Stat § 315 allows this court to “hold unlawful and set
aside agency actions, findings, and conclusions to be…
arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with the law…” Thus, for Skipetski’s suit to
move forward, the facts in his complaint must demonstrate
that his termination was arbitrary and capricious, or an abuse
of discretion.
The arbitrary and capricious standard is a “narrow” one.
FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009).
Under this standard, when an agency performs an action, it
must “examine the relevant data and articulate a satisfactory
explanation for its action.” Id. (quoting Motor Vehicles Mfr.
Assoc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983)). In reviewing that explanation, we must "consider
whether the decision was based on a consideration of the
relevant factors and whether there has been a clear error of
judgment." Id. (quoting Bowman Transp., Inc. v. Arkansas-
Best Freight System, Inc., 419 U.S. 281, 285 (1974)). We are
not to substitute our judgment for the agency’s, however, and
we should “uphold a decision of less than ideal clarity if the
agency’s path may reasonably be discerned.” Fox Television
Studios, Inc., 556 U.S. at 513-514 (quoting Bowman Transp.
Inc., 419 U.S. at 286)). With these notes in mind, an agency
action is arbitrary and capricious if it “relied on factors which
[the county legislature] has not intended it to consider,
entirely failed to consider an important aspect of the problem,
offered an explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it could
7
not be ascribed to a difference in view or the product of
agency expertise.” State Farm, 463 U.S., at 43.
Skipetski’s arguments regarding the three reasons offered
by the PPD, combined together, fall flat. Although Skipetski
seems to allege that the “criminal offenses” reason is
insensible because of the Good Samaritan Ordinance that
protected the civilian he handed a firearm to, he does not
plead factual allegations that make the PPD’s view that he
violated their SOP and NDA a clear error of judgment. For
one, the fact that Skipetski released radio communication
logs to a civilian without demonstrating (or at least alleging
in his complaint) that he was given consent to do so
significantly damages his case. In addition, no statute exists
that would have given Mr. Skipetski any whistleblower
protection, of which he mostly bases his argument against
“Violation of NDA” on. In addition, Skipetski admits that he
violated part of the Ride Along policy enacted by the PPD,
and while he correctly points out that that alone should not
result in a termination (given that incidents like the one he
described are not usually seriously damaging to the
department), the fact that he has not been able to rebut the
“Violation of NDA” reason counsels against holding that his
termination was arbitrary and capricious.
Thus, Skipetski has not stated a claim upon which relief can
be granted in his complaint.
B - Judicial Ethics
The second issue raised on appeal is whether the trial court
dismissed the case because of judicial interference. In other
words, Appellant suggests that the judge acted unethically
and/or corruptly. Any suggestion of judicial interference is
extremely concerning, and should be taken into serious
consideration—when a sufficient and logical argument is
made to establish the claim. Even if the suggestion of judicial
interference were logical, it is well established that "appellate
8
courts will not consider arguments not raised before trial
courts." Sims v. Apfel, 530 U.S. 103, 108-109 (2000). This
procedural tendency “is equally essential in order that
litigants may not be surprised on appeal by final decision
there of issues upon which they have had no opportunity to
introduce evidence.” Hormel v. Helvering, 312 U.S. 552, 556
(1941). There is no record of the judicial interference,
corruption, or any other ethical concern being raised by Mr.
Tomskipetski5 or his counsel prior to the party. If Appellant
had come to believe that the judge was truly an agent of the
Palmer Police Department, then a recusal motion would need
to have been entered into the record: no recusal was ever filed.
Instead, the entire argument of the Appellant is centered on
a hypothetical—a speculation that interference may have
occurred because one party possibly communicated with the
judge after the order. A judge is not corrupt because the
judge rendered a verdict contrary to a party. A judge is not
corrupt because of a hypothetical, undeveloped, and
unsupported argument. Suggesting a judge acted unethically
is, as Appellee reminded, a grave danger and absolute risk.
III
Although we do not believe that the trial judge undertook
the appropriate analysis for the Twombly/Iqbal standard
consistent with our opinion, we agree nonetheless that the
complaint fails the standard, and that no amendment would
be sufficient to correct the deficiencies in the complaint. We
therefore affirm the County Court’s dismissal with prejudice.
It is so ordered.
