Cory Hall v. City of Newport New

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:09-cv-00136-RBS-DEM Copies to all parties and the district court/agency. [998809402].. [10-1653]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-1653

CORY M. HALL,
Plaintiff – Appellant,
v.
CITY OF NEWPORT NEWS; JAMES D. FOX, Chief of Police
Officially and Individually; JOE MOORE, Assistant Chief of
Police
Officially
and
Individually;
NEIL
A.
MORGAN,
Assistant City Manager/Acting City Manager Officially and
Individually;
RANDY
HILDEBRANDT,
Former
City
Manager
Officially and Individually,
Defendants – Appellees.

Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.
Rebecca Beach Smith,
District Judge. (4:09-cv-00136-RBS-DEM)

Argued:

September 22, 2011

Decided:

March 14, 2012

Before MOTZ, GREGORY, and SHEDD, Circuit Judges.

Affirmed in part and reversed and remanded in part by
unpublished per curiam opinion. Judge Gregory wrote an opinion
concurring in part and dissenting in part.

ARGUED: Oldric Joseph LaBell, Jr., Newport News, Virginia, for
Appellant.
Stanley Graves Barr, Jr., KAUFMAN & CANOLES, PC,
Norfolk, Virginia, for Appellees.
ON BRIEF: R. Johan Conrod,
Jr., KAUFMAN & CANOLES, PC, Norfolk, Virginia, for Appellees.

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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Cory Hall appeals the district court’s order dismissing his
Amended Complaint for failure to state a claim upon which relief
can be granted.

See Fed. R. Civ. P. 12(b)(6).

For the reasons

set forth below, we affirm in part and reverse in part.

I.
In his Amended Complaint against the City of Newport News
(the

“City”)

and

the

City’s

Police

Department

(the

“Department”), Hall alleges the following facts, which we accept
as true for purposes of this opinion.
551 U.S. 89, 94 (2007).
Department.

See Erickson v. Pardus,

Hall was a police officer with the

In November 2006, Hall was fired after the Chief of

Police sustained the following disciplinary charges against him:
improper

procedure,

untruthfulness

during

the

course

of

an

investigation, excessive use of force, and improper or unlawful
arrest.
Hall appealed his discharge to the City’s grievance panel.
The panel conducted a hearing and issued a decision dismissing
three of the four disciplinary charges against Hall and reducing
the

charge

investigation

of

untruthfulness

to

negligent

during

the

record-keeping.

course
In

of

an

addition,

the

panel directed Hall’s reinstatement as a police officer.

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Thereafter,

Date Filed: 03/14/2012

the

City

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exercised

its

right

decision to the panel for reconsideration.

to

remand

the

Although the panel

affirmed its previous decision, the Department did not reinstate
Hall.

Hall

then

implementation

of

brought
the

an

panel

action

in

state

decision.

court

Although

seeking

that

court

directed the Department to reinstate Hall, the Department still
refused.

Thereafter, Hall filed a motion with the state court

to compel his reinstatement.

After a hearing on that motion,

the Department finally reinstated Hall in December 2008.
When Hall returned to work, the Department assigned him to
a civilian position in the Records Bureau and stripped him of
his

law

enforcement

powers

and

status

as

a

police

officer.

Additionally, the City and Department records still contain the
original disciplinary charges against Hall.

These records do

not reflect that the grievance panel dismissed three of the four
disciplinary charges and reduced the fourth.

II.
In

response

to

both

the

delay

and

the

terms

of

his

reinstatement, Hall brought this action pursuant to 42 U.S.C. §
1983, alleging three due process violations: (1) a violation of
his

procedural

due

process

right

to

have

a

hearing

at

a

meaningful time; (2) a deprivation of his liberty interest in
his reputation and occupation without due process of law; and
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(3) a deprivation of his property interest in his position as a
police officer without due process of law.

The defendants moved

to dismiss Hall’s claims pursuant to Rule 12(b)(6) for failure
to state a claim.

The district court granted the motion and

dismissed Hall’s case on all counts. 1
We review de novo an order dismissing a claim under Rule
12(b)(6). See Duckworth v. State Admin. Bd. of Election Laws,
332 F.3d 769, 772 (4th Cir. 2003).

To survive a Rule 12(b)(6)

motion, a plaintiff must allege enough facts “to raise a right
to relief above the speculative level” and must provide “enough
facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
A.
In

Count

I,

Hall

alleges

that

the

delay

in

his

reinstatement constitutes a deprivation of property without due
process of law pursuant to Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 532, 547 (1985) (“At some point, a delay in the posttermination hearing would become a constitutional violation.”).
The

district

court

found

that

Hall

had

not

satisfied

the

Loudermill standard for an unconstitutional delay because, other
1

Hall’s Amended Complaint lists three causes of action.
However, on appeal, Hall has only challenged the district
court’s dismissal of Counts I and II.
Therefore, Hall has
abandoned any challenge as to the dismissal of Count III.
See
Tucker v. Waddell, 83 F.3d 688, 690 n.1 (4th Cir. 1996).

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than the delay itself, he alleged no facts suggesting that the
delay

was

found

that

“unreasonably
a

prolonged.”

significant

portion

Additionally,
of

the

alleged

the

court

delay

was

attributable to either standard procedural delays or to Hall’s
failure to file the suit to enforce the grievance panel decision
at an earlier time.
and

carefully

After having the benefit of oral argument

reviewing

the

briefs,

record,

and

controlling

legal authorities, we find no reversible error in the district
court's disposition of this issue.

Accordingly, we affirm the

dismissal of Count I based substantially on the reasoning of the
district court.

See J.A. 136-142 (opinion granting Defendants’

Motion to Dismiss). 2
B.
In

Count

II,

Hall

alleges

that

his

personnel

records

continue to contain the original disciplinary charges against
2

The dissent believes the City committed a constitutional
violation by delaying its compliance with the grievance panel’s
decision. To the extent a post-hearing delay could give rise to
actionable conduct, that situation does not exist here. First,
the decision of the panel is not self-enforcing.
See Newport
News, Virginia, Code of Ordinances § 2-186(b)(5)(g)(“If either
party refuses to implement a panel decision, the other party may
petition the Circuit Court of Newport News to enforce the
decision.”).
When a party decides not to abide by a panel
decision, the law provides for a state court enforcement action.
See Va. Code Ann. § 15.2-1507(A)(11).
Second, Hall could have
eliminated much, if not all, of any unreasonable delay by simply
initiating his state court enforcement action sooner.
At oral
argument, Hall admitted a more timely course of action was
available to him.

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him despite the grievance panel decision dismissing three and
reducing one of those four charges.

Therefore, Hall claims that

the defendants violated his liberty interest in his reputation
and occupation by maintaining inaccurate personnel records on
these charges.

“To state this type of liberty interest claim

under the Due Process Clause, a plaintiff must allege that the
charges against him: (1) placed a stigma on his reputation; (2)
were made public by the employer; (3) were made in conjunction
with his termination or demotion; and (4) were false.”

Sciolino

v. City of Newport News, Va., 480 F.3d 642, 646 (4th Cir. 2007).
The district court found that Hall pled facts sufficient to
support all but the third Sciolino element.
have

not

challenged

the

district

court’s

As the defendants
findings

as

to

the

other three elements, the only issue on appeal is whether Hall
has

satisfied

that

Sciolino

element

–

which

is

“a

public

employer’s stigmatizing remarks must be made in the course of a
discharge or significant demotion.”
Marshall
citations

Univ.,

447

omitted).

F.3d
In

292,

309

Ridpath,

definition of significant demotion:

Ridpath v. Bd. of Governors
(4th
we

Cir.

adopted

2006)(internal
the

following

“[A]n offer of a job far

beneath the one he had, where being so demoted is to be as
effectively excluded from one’s trade or calling as by being
thrown out on the street.”

Id. at 314 (finding the compliance

director’s reassignment outside the athletics department “was a
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significant demotion to a position outside his chosen field,
rendering it tantamount to an outright discharge”).
Hall

alleges

that

although

he

has

been

reinstated

as

a

Department employee, he has a civilian position and is no longer
a “certified law-enforcement officer” with the police power to
make stops, issue summons and warrants, and make arrests.
Compl. ¶¶ 38, 43.

Am.

Accordingly, Hall alleges that the Defendants

have made him “something other that [sic] a police officer.”
Am. Compl. ¶ 38.

Therefore, taking these allegations as true,

Hall’s

position

reinstated

within

the

Department

effectively

excludes him from his trade or calling as a police officer.
Because

this

is

sufficient

under

Ridpath

to

qualify

as

a

significant demotion, Hall has properly alleged a deprivation of
his liberty interest in his reputation and occupation.

III.
For the foregoing reasons, we affirm the dismissal of Count
I and reverse the dismissal of Count II.

Accordingly, we remand

this case to the district court for proceedings consistent with
this opinion.
AFFIRMED IN PART AND
REVERSED AND REMANDED IN PART

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GREGORY, Circuit Judge, concurring in part and dissenting in
part:
Although

I

concur

in

Parts

I

and

II.B

of

the

opinion

reversing the dismissal of Hall’s liberty interest claim, I am
compelled to dissent from Part II.A.

Because Hall has alleged

facts

for

sufficient

to

support

a

claim

an

unconstitutional

obstruction that resulted in a delay of his reinstatement, I
would reverse the district court’s dismissal of Count I as well.

I.
This

case

is

unique

because,

unlike

the

typical

post-

termination procedural due process claim, Hall does not allege
that

he

was

denied

a

hearing

or

that

he

experienced

an

unreasonably prolonged delay before receiving a decision from
the grievance panel proceedings.

He was granted a grievance

hearing and received a decision in his favor that was final and
binding under Virginia law and City ordinances.

Instead, Hall

alleges that the City willfully refused to comply with the panel
decision

and

that

this

deliberately

obstructive

behavior

constituted a deprivation of property without due process.
No

precedent

directly

addresses

the

question

of

when

a

failure to implement a final decision rises to the level of a
constitutional
Loudermill,

the

violation.
Supreme

In
Court

9

Cleveland
set

out

Bd.
the

of

Educ.

scope

of

v.
pre-

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termination procedures that are due to public employees and also
addressed

the

question

of

delay

in

post-termination

hearings

that could rise to the level of a constitutional violation.
U.S. 532, 547 (1985).

470

There, the Court indicated that “[a]t

some point, a delay in [a] post-termination hearing would become
a constitutional violation,” but that in order to state a claim
for this type of constitutional deprivation, a plaintiff must
allege

facts

beyond

the

delay

itself

delay is “unreasonably prolonged.”

that

Id.

might

suggest

the

However, Loudermill

does not directly address a delay in the implementation of a
final and binding decision that results from such procedures.
Nor

does

it

address,

as

here,

“delay”

that

is

the

direct

consequence of a municipality’s willful refusal to comply with a
final and binding decision.
The majority is correct that a claim for delay cannot be
based solely on the standard time that elapses throughout the
chronology of the proceedings.

Nor can it be based on a “delay”

in requesting court action external to the procedure to force
compliance.

Had this been the sum of Hall’s allegations, his

claim for delay would not survive.
alleged

that

his

delayed

It was not.

reinstatement

consequence of obstructive conduct:

was

Instead, Hall
the

direct

the City’s willful refusal

to comply with the final and binding grievance decision.
City conceded the truth of this allegation in oral argument:
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The

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The Court:

You get the final decision after it
has gone back to remand to the panel,
right?
And the City gets it back,
and you say well we couldn’t keep
appealing within the City government
because the result would have been
the same. So why didn’t you then put
him back -– follow what the order was
of the panel?

City:

For
the
same
reasons
that
were
asserted when the matter was remanded
to the panel, and that is that the
decision was contrary to policy and
law.

The Court:

But you had lost that.

City:

That’s correct.
. . .

The Court:

Did you have a right to go to this
implementation process and ask for
non-implementation?

City:

No we could not do that.
have that right.

The Court:

Did you have a right to go to some
sort of state court and say this was
bizarre and outrageous and that you
shouldn’t be forced to do this?

City:

We did not have that right.

We did not

. . .
The Court:

You’re saying that you just said, “We
will let you force me to do it?”
That was the legal advice?

City:

Given the fact that the City had no
other alternative that is exactly the
position it was in.

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Willful
because

you

procedural
certain

refusal
do

to

not

delay.

abide

by

a

final

with

It

categorically

is

could

the

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agree

circumstances,

justice.
direct

Date Filed: 03/14/2012

and

decision

amount

binding

is

not

standard

unreasonable

to

an

order

and,

in

obstruction

of

Under these facts, a delay inevitably ensues as the
consequence

conduct.

of

the

City’s

deliberately

obstructive

It cannot be that this otherwise unreasonable delay in

compliance –- one that is not the result of standard procedural
delay -- is cured or without consequence because there exists a
possibility of some separate enforcement action external to the
procedure to force compliance.
binding,

and

Applying this logic, the final,

self-effectuating

nature

of

panel

decisions

evaporates, and the City can always delay implementation until,
as

here,

the

enforcement

prevailing

procedure

or

officer

can

otherwise

afford
abandons

to

utilize

his

an

right

to

reinstatement.
What’s

more,

today’s

majority

gives

the

City

every

incentive to do just that as no circumstances exist where the
City could be susceptible to a claim for unreasonable delay in
reinstatement under the majority’s analysis.
a

prevailing

officer

to

initiate

an

The time it takes

external

enforcement

procedure will always overlap with the City’s deliberate delay.
To

characterize

this

overlapping

period

of

time

only

as

the

officer’s “delay” in requesting court action to force compliance
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–- a period for which unreasonable delay claims cannot be based
–- effectively immunizes the City from liability for its part in
forcing the delay by refusing to abide by the final and binding
decision and eliminates any consequences that would deter such
deliberately

obstructive

behavior

in

the

future

–-

namely,

nominal damages and attorney’s fees.

II.
Cory M. Hall, a police officer decorated with commendations
including Police Officer of the Year and a Medal for Valor, has
experienced what no officer in the City of Newport News has ever
had to endure:

a willful refusal by the City to comply with a

final and binding decision ordering his reinstatement.

Once

that decision was reached, the City was required to reinstate
Hall.

The majority incorrectly assumes that the period between

the binding grievance panel decision and Hall’s initiation of
the state court enforcement action eliminates the relief he is
due for the City’s egregious actions.
respectfully dissent from Part II.A.

13

For these reasons, I