Hale et al v. City of Lanett, Alabama (CONSENT)

Filing 38

MEMORANDUM OPINION AND ORDER that: 1) The 28 Motion for Summary Judgment with respect to the federal due process claims be GRANTED in favor of the City of Lanett; 2) The federal due process claims be dismissed with prejudice; 3) The state law claim s be REMANDED to the Chambers County Circuit Court; The Clerk of the Court be and is hereby DIRECTED to take the action necessary to accomplish the remand of this case to the Circuit Court of Chambers County. Signed by Honorable Judge Terry F. Moorer on 7/22/2013. (Attachments: # 1 Civil Appeals Checklist) (wcl, ) Modified on 7/22/2013 copy mailed to Clerk, Circuit Court of Chambers County (wcl, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
DARRELL HALE, et al.,
Plaintiff,
v.
CITY OF LANETT, ALABAMA,
Defendant.

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CIVIL ACT. NO. 3:12CV584-TFM

MEMORANDUM OPINION and ORDER
I. INTRODUCTION
Former police officers Darrell Hale (“Hale”), Tseyonka Davidson (“Davidson”), and
Nathan White (“White”) (collectively referred as “Plaintiffs” or “Officers”), filed this action
in state court, alleging a state law claim of wrongful termination against the City of Lanett,
Alabama (“Defendant” or “City of Lanett”). In addition, Plaintiffs contend that their federal
and state due process rights were violated.
The City of Lanett timely removed the action to this court on the basis of federal
question jurisdiction pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction pursuant
to 28 U.S.C. § 1367. The parties have consented to a United States Magistrate Judge
conducting all proceedings in this case and ordering the entry of final judgment, pursuant to
28 U.S.C. § 636(c)(1) and M.D. ALA. L.R. 73.1.
Now pending before the court is the Motion for Summary Judgment filed by the City

of Lanett. (Doc. # 28.) The court has carefully reviewed the Motion for Summary Judgment,
the briefs filed in support of and in opposition to the Motion, and the supporting evidentiary
materials and concludes that the Motion is due to be GRANTED as to the federal due process
claims and that the state law claims are due to be REMANDED to the state court.
II. STANDARD OF REVIEW
“Summary judgment is appropriate ‘if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show there is no
genuine [dispute]1 as to any material fact and that the moving party is entitled to judgment
as a matter of law.’” Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1263 (11th
Cir. 2007) (per curiam) (citation omitted); FED.R.CIV.P. 56(c) (Summary judgment “should
be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits
show that there is no genuine [dispute] as to any material fact and that the movant is entitled
to judgment as a matter of law.”). The party moving for summary judgment “always bears
the initial responsibility of informing the district court of the basis for its motion, and
identifying those portions of the [record, including pleadings, discovery materials and
affidavits], which it believes demonstrate the absence of a genuine [dispute] of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may meet this burden by

1

Effective December 1, 2010, the language of Rule 56(a) was amended. The word
“dispute” replaced the word “issue” to “better reflect[] the focus of a summary-judgment
determination.” FED.R.CIV.P. 56(a), Advisory Committee Notes, 2010 Amendments.
2

presenting evidence which would be admissible at trial indicating there is no dispute of
material fact or by showing that the nonmoving party has failed to present evidence in
support of some element of its case on which it bears the ultimate burden of proof. Id. at
322-324.
Once the movant meets his evidentiary burden and demonstrates the absence of a
genuine dispute of material fact, the burden shifts to the non-moving party to establish, with
appropriate evidence beyond the pleadings, that a genuine dispute material to his case exists.
Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); Celotex, 477 U.S. at 324;
FED.R.CIV.P. 56(e)(2) (“When a motion for summary judgment is properly made and
supported, an opposing party may not rely merely on allegations or denials in its own
pleading; rather, its response must ... set out specific facts showing a genuine [dispute] for
trial.”). A genuine dispute of material fact exists when the nonmoving party produces
evidence that would allow a reasonable fact-finder to return a verdict in its favor.
Greenberg, 498 F.3d at 1263.
To survive the plaintiffs’ properly supported motion for summary judgment, the
defendant is required to produce “sufficient [favorable] evidence” “that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248-49 (1986). “If the evidence [on which the nonmoving party relies] is merely
colorable . . . or is not significantly probative . . . summary judgment may be granted.” Id.

3

at 249-250. “A mere ‘scintilla’ of evidence supporting the opposing party’s position will not
suffice; there must be enough of a showing that the [trier of fact] could reasonably find for
that party.” Walker v. Darby, 911 F.2d 1573, 1576-1577 (11th Cir. 1990) (quoting Anderson,
supra). Conclusory allegations based on subjective beliefs are likewise insufficient to create
a genuine dispute of material fact and, therefore, do not suffice to oppose a motion for
summary judgment. Waddell v. Valley Forge Dental Assocs., Inc., 276 F.3d 1275, 1279
(11th Cir. 2001). Hence, when a nonmoving party fails to set forth specific facts supported
by appropriate evidence sufficient to establish the existence of an element essential to its case
and on which the nonmovant will bear the burden of proof at trial, summary judgment is due
to be granted in favor of the moving party. Celotex, 477 U.S. at 322 (“[F]ailure of proof
concerning an essential element of the nonmoving party’s case necessarily renders all other
facts immaterial.”).
For summary judgment purposes, only disputes involving material facts are relevant.
United States v. One Piece of Real Prop. Located at 5800 SW 74th Ave., Miami, Fla., 363
F.3d 1099, 1101 (11th Cir. 2004). What is material is determined by the substantive law
applicable to the case. Anderson, 477 U.S. at 248; Lofton v. Sec’y of Dep’t of Children &
Family Servs., 358 F.3d 804, 809 (11th Cir. 2004) (“Only factual disputes that are material
under the substantive law governing the case will preclude entry of summary judgment.”).
“The mere existence of some factual dispute will not defeat summary judgment unless that

4

factual dispute is material to an issue affecting the outcome of the case.” McCormick v. City
of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (citation omitted). To demonstrate
a genuine dispute of material fact, the party opposing summary judgment “must do more than
simply show that there is some metaphysical doubt as to the material facts. . . . Where the
record taken as a whole could not lead a rational trier of fact to find for the nonmoving party,
there is no ‘genuine [dispute] for trial.’” Matsushita Elec. Indus. Co, Ltd., v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). In cases where the evidence before the court which is
admissible on its face or which can be reduced to admissible form indicates that there is no
genuine dispute of material fact and that the party moving for summary judgment is entitled
to it as a matter of law, summary judgment is proper. Celotex, 477 U.S. at 323-324
(summary judgment appropriate where pleadings, evidentiary materials and affidavits before
the court show there is no genuine dispute as to a requisite material fact); Waddell, 276 F.3d
at 1279 (to establish a genuine dispute of material fact, the nonmoving party must produce
evidence such that a reasonable trier of fact could return a verdict in his favor).
However, if there is a conflict in the evidence, “the evidence of the non-movant is to
be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S.
at 255; Ruiz de Molina v. Merritt & Furman Ins. Agency, 207 F.3d 1351, 1356 (11th Cir.
2000).

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III. FACTS1
This case is more than about broken jars of pickles, smashed pastries, and an unruly
customer in the produce section of the Piggly Wiggly in a small southern town; it is about
the destroyed careers of three experienced police officers. While on duty on the evening of
March 23, 2010, Plaintiffs received a call about a customer behaving erratically in the
produce section of the Piggly Wiggly. (Pl’s Comp., p. 1; Def’s Ex. DD.) The officers found
Antonio Scott (“Scott”) hiding behind a display of pickle jars. (Davidson’s Dep., p. 39.)
Both Officers Davidson and White asked Scott to leave the store. (Id.; White’s Dep., p. 23.)
When Scott refused to do so, Officer Davidson told Officer White that they needed to “1015", i.e. arrest, the customer. (Davidson’s Dep., p. 16.)
During the officers’ attempt to arrest, Scott destroyed two dill pickle jars, one package
of vanilla cream horns, and one package of cruller doughnuts. (Defs’ Ex. KK.) While
attempting to handcuff Scott in the store and put him into an ambulance, Officers Davidson,
White, and/or Hale deployed their tasers numerous times. (Defs’ Exhs. A, P, R, FF, GG, &
XX.) Scott was subsequently charged with public intoxication, resisting arrest, third-degree
criminal mischief, and physical harassment. (Def’s Ex. JJ.)
Shortly after the incident, the officers completed an Alabama Uniform
Incident/Offense Arrest Report. (Def’s Ex. KK.) Officer White also completed a Use of

1

Viewed in the light most favorable to Hale, Davidson, and White and drawing all reasonable
inferences in their favor, the following facts are treated as undisputed for the purpose of summary judgment.

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Force Report and a Taser Use Report, which were provided to Lieutenant Johnny Wood and
the Interim Chief of Police Tifton Dobbs (“Major Dobbs”). (Def’s Ex. LL, MM; White’s
Dep., pp. 53-54.) No disciplinary action was taken against the defendants at that time.
In an investigation report submitted to Chief of Police Ronnie Dollar (“Chief Dollar”)
in December 2010, Major Dobbs reported that he did not become fully aware of the taser
incident until November 3, 2010, when an insurance adjuster called about an unrelated claim
involving the use of a taser filed against the police department. (Def’s Ex. PP.) After
learning of the Scott incident, Chief Dollar directed Major Dobbs to conduct an investigation.
(Id.) Upon watching videos of the incident, Major Dobbs counted twenty-three exposures
prior to the time Scott was placed in the ambulance, six exposures in the ambulance, and one
exposure at the hospital. (Id.) Major Dobbs found no justification for seven of the taser
exposures. (Id.)
In his report, Major Dobbs also considered witness statements, including an interview
in which City of Lanett Fire Department Chief Johnny Allen recalled that Scott was “violent,
belligerent, and wouldn’t obey the officers” and that he “felt there was a risk of danger
because of the behavior of the suspect, and his feet [were] not fully restrained.” (Id.) Major
Dobbs also considered the interview of another fireman, Andy Gray, in which he stated that
Scott attempted to kick him and another officer while being placed on the stretcher and
continued to fight, move his head, kick his legs, and make threatening comments while on

7

the stretcher. (Id.) He also noted that store employees indicated that “Mr. Scott was out of
control and needed tasing” and that an emergency room technician stated that “Mr. Scott was
out of his mind and was out of control and stated that Officer Davidson was nice to Mr.
Scott.” (Id.) After considering all of the evidence, including videos of the incident, Major
Dobbs found that the charges of violating Sections 1.586.8 and 1.500.01 of the Lanett Police
Department Standard Operating Procedure, specifically the failure to follow the Police
Department Taser Policy and the use of unnecessary force, should be sustained. (Id.)
On December 30, 2010, Plaintiffs were served with a Notification of Disciplinary
Hearing signed by Acting City Manager Deborah Daniel. (Def’s Ex. QQ.) The notice stated
that a hearing was set for January 10, 2010 before the City Manager and that disciplinary
action was sought on the grounds that they violated Sections 1.586.8 and 1.500.01. (Id.)
Shortly before the scheduled hearing, Plaintiffs hired counsel to represent them. A hearing
before Ms. Daniel, however, did not occur. Instead, Chief Dollar met with Plaintiffs about
the incident.
On January 12, 2011, Chief Dollar sent a letter to each of the plaintiffs, stating that
the evidence at the hearing was “overwhelming” that each plaintiff had violated the Police
Department Taser Policy and the Use of Force Policy, that they were terminated from their
employment as of January 10, 2011, and that they were being placed on administrative

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leave.2 (Def’s Ex. SS.)
On January 20, 2011, the City Attorney sent a letter to Plaintiffs’ counsel advising that
disciplinary action was recommended against Plaintiffs and that a full due process hearing
would be held on February 9, 2011. (Def’s Ex. UU.) The letter also provided a list of
charges against each Plaintiff along with supporting facts and a citation to each alleged
policy violation. (Id.) The City Attorney also specified:
•

Your clients (and each of them) will have the opportunity to
fairly refute the charges against them (or any of them)

•

The hearing will be held before Acting City Manager Deborah
Daniel

•

Your clients (and each of them) will have the opportunity to
present evidence, produce witnesses, and to cross-examine
witnesses for the City

•

Your clients (and each of them) will have the right to have the
proceedings transcribed at your clients’ (or any of their) expense

•

Your clients (and each of them) have the right to be represented
by legal counsel

•

At the hearing, your clients (and each of them) will be requested
to inform the City of any complained of wrongdoing with
respect to either the substance of the matter or the procedures
used by the City

2

Despite the wording of the letter, the parties do not dispute that the meeting between Chief Dollar
and Plaintiffs was not a hearing that comports with due process and that the officers were placed on
administrative leave and not terminated from their employment at that time. (Def’s Brief in Support of the
Motion for Summary Judgment, p. 35.)

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•

The City expects to call as witnesses Police Chief Ronnie
Dollar, Major Tifton Dobbs, and LaGrange, Georgia Police
Chief Louis Dekmar. The City reserves the right to call
additional witnesses and the right to cross examine witnesses
produced by your clients (or any of them). Please provide me
with a list of witnesses expected to be called by your clients (or
any of them). The City will provide you with copies of all
visual and documentary evidence expected to be introduced by
the City upon the receipt of releases signed by your clients
(since the matters are personnel related).

•

If there is additional information you need to prepare for the
hearing(s) or procedures necessary to protect your clients’ (or
any of their) due process rights, please let me know
immediately.

(Id.) The City Attorney also advised that Plaintiffs had the right to appeal an unsatisfactory
determination before a hearing officer not affiliated or employed by Defendant in accordance
with Section 8.02 of the City of Lanett Personnel Policy. (Id.)
On February 9, 2011, a hearing before Ms. Daniel was conducted. (Ex. XX.) At the
beginning of the hearing, the City Attorney read parts of his January 20, 2011 letter to
Plaintiffs’ counsel into the record, including a reminder that Plaintiffs were “requested to
inform the City of any complained of wrongdoing with respect to either the substance of the
matter or the procedures used by the City” and “to let [him] know immediately” of any
additional information needed to prepare for the hearing or procedures necessary to protect
Plaintiffs’ due process rights. (Ex. XX, Transcript, pp. 7-8.) The City Attorney also stated:
[W]e cannot, we, being the City, in an effort to be fair to the employees, it
would not be fair to have this due process hearing in front of the City Manager
10

and then an appeal in front of the same person who is going to make this
decision. Obviously, I talked to [Plaintiffs’ counsel] about that. If and when
his clients have an adverse determination and if, in fact, they choose to appeal,
that is the reason for that discrepancy, so as to give them an effort not to have
to hear an appeal in front of the same person who made a particular factual
determination.
(Id., p. 9.) The City produced two witnesses, Chief Dollar and Chief Dekmar, and entered
twelve exhibits. (Id., pp. 10-78.) Each of the plaintiffs testified and produced exhibits. (Id.,
pp. 79-124.)
On February 10, 2011, Ms. Daniel sent letters to Plaintiffs notifying them that their
employment with the City was terminated. (Def’s Exhs. ZZ-BBB.) Each letter provided that
their terminations were effective immediately. (Id.) The three letters were substantively
identical except for Hale’s letter which provides that he was terminated “as a result of
previous disciplinary offenses introduced at the hearing” as well as the incident with Mr.
Scott. (Id.) In addition, the letter provided that Plaintiffs were entitled to request a review
of Ms. Daniel’s determination before “a hearing officer not affiliated with or employed by
the City of Lanett since the City Manager acted as the hearing officer at the due process
hearing.” (Id.) In a separate letter, Ms. Daniels also informed the officers that their pay
would terminate effective February 18, 2011. (Def’s Exh. CCC.)
On February 18, 2011, Plaintiffs’ counsel requested a written review of Ms. Daniels’
determination. (Def’s Exh. DDD.) In a letter dated February 23, 2011, the City Attorney set
forth the process for the review of Ms. Daniels’ decision as follows:
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•

Each Plaintiff receives thirty minutes to present his case,
including witnesses

•

The City receives thirty minutes to present its case

•

The presentations are limited to “those matters for which [the
Plaintiffs] were disciplined. . . .”

(Def’s Ex. EEE.)
On March 18, 2011, Supernumerary District Attorney Rea Clark, the hearing review
officer, conducted a review. (Def’s Ex. HHH.) Following the hearing and a review of the
evidence, Mr. Clark upheld the termination of the officers. (Id.)

The Plaintiffs filed a

lawsuit in the Circuit Court of Chambers County on June 6, 2012. (Pls’ Comp., p. 1.) The
case was subsequently removed to this court on July 6, 2012. (Doc. No. 1.)
IV. DISCUSSION
A. The Federal Procedural Due Process Claim
Plaintiffs contend that the City of Lanett deprived them of their procedural due
process rights by violating their own policies. Specifically, they assert that the Chief of
Police does not have the authority to terminate employees. In addition, they assert that the
City terminated them without affording them an appeal before the City Manager, the Mayor,
and/or the City Council. Officer Hale also contends that he did not receive proper notice of
all of the charges against him. The City asserts that Plaintiffs were provided sufficient due
process because they were afforded a hearing before the Acting City Manager and an appeal

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of her decision to an impartial decisionmaker. In addition, they argue that the State of
Alabama provides an adequate remedy for any deprivations of due process.
Due process requires that “a deprivation of life, liberty, or property ‘be preceded by
notice and opportunity for hearing appropriate to the nature of the case.’” Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 542 (1985), quoting Mullane v. Central Hanover Bank
& Trust Co., 339 U.S. 306, 313 (1950). To establish a due process claim, a plaintiff must
demonstrate: (1) that he was deprived of a property interest; and (2) that he did not receive
sufficient process regarding that deprivation. Ross v. Clayton County Ga., 173 F.3d 1305,
1307 (11th Cir. 1999). For purposes of the Motion for Summary Judgment, the City of
Lanett concedes that Plaintiffs have a constitutionally protected property interest in their
employment as police officers. (Doc. No. 29, Defs’ Br., p. 45.)
The essential requirements of due process are notice and an opportunity to respond.
Cleveland Bd. of Educ., 470 U.S. at 546. The opportunity to present reasons why a proposed
action should not be taken is a fundamental due process requirement. Id. Thus, the principle
of due process requires “‘some kind of hearing’ prior to the discharge of an employee who
has a constitutionally protected property interest in his employment.” Id., at 542. The
hearing “should be an initial check against mistaken decisions – essentially a determination
of whether there are reasonable grounds to believe that the charges against the employee are
true and support the proposed action.” Id.

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In this case, Plaintiffs were provided written notice of the reasons for their
termination. In addition, they were afforded a full hearing prior to their termination.3 During
the hearing before the Acting City Manager, Plaintiffs’ counsel presented evidence and
cross-examined the City’s witnesses and Plaintiffs gave testimony regarding their version of
the facts. (Defs’ Ex. XX.) After the hearing, Plaintiffs were provided with Ms. Daniels’
reasons for her decision to terminate the officers. Plaintiffs argue that they were not
permitted an appeal to the City Manager because the City Manager conducted the due
process hearing.4 Nonetheless, the Plantiffs were allowed to appeal the decision to a hearing
3

The notice does not indicate that Plaintiff Hale received notice that prior disciplinary
charges would also be considered against him; it does, however, indicate that he was charged with
violating the Taser Use Policy and the Use of Force Policy.
4

The City of Lanett argues that Plaintiffs waived their argument regarding the authority of the Acting
City Manager to conduct the hearing because they failed to object. Despite the City Attorney requesting that
Plaintiffs’ counsel object to any procedures used by the City both before and during the due process hearing,
Plaintiffs’ counsel did not object to Ms. Daniels as the hearing officer. Plaintiffs, however, argue that
Defendant waived its waiver argument by failing to plead the affirmative defense of waiver in its Answer as
required by FED.R.CIV.P. 8(c). It is well-settled law that a defendant does not waive an affirmative defense
if the earlier omission from responsive pleadings does not prejudice the plaintiff. See Edwards v. Fulton
County, Ga. 509 Fed.Appx. 882, 887 (11th Cir. 2013) (citing Proctor v. Fluor Enters., Inc., 494 F.3d 1337,
1350 (11th Cir.2007) (acknowledging that, in cases where federal case law has identified specific affirmative
defenses, we have “examined whether a plaintiff had notice of the unpled defense or was prejudiced by the
lack of notice” in determining whether the defendant waived the defense); Sweet v. Sec'y, Dep't of
Corrections, 467 F.3d 1311, 1321 n. 4 (11th Cir.2006) (“[O]ur cases interpreting [Rule 8(c) ] ... support a
liberal approach to waiver where the failure to raise an affirmative defense has not prejudiced the plaintiff.”);
Hassan v. U.S. Postal Serv., 842 F.2d 260, 263 (11th Cir.1988) (“[W]hen the failure to raise an affirmative
defense does not prejudice the plaintiff, it is not error for the trial court to hear evidence on the issue.”); Jones
v. Miles, 656 F.2d 103, 107 n. 7 (5th Cir. Unit B Aug.1981) (“Neglect to affirmatively plead [an affirmative
defense] is simply noncompliance with a technicality and does not constitute a waiver where there is no claim
of surprise.”)). Because the City raised the defense in its Motion for Summary Judgment, the Plaintiffs had
sufficient opportunity to respond. Thus, this court concludes that the City’s failure to assert the affirmative
defense of waiver in its Answer did not prejudice the Plaintiffs. Because the court concludes the State of
Alabama provides an adequate remedy, the court makes no finding as to whether Plaintiffs waived their
argument concerning whether Ms. Daniels had the authority to conduct the hearing or terminate Plaintiffs.

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review officer. On appeal, Mr. Clark found that the decision to terminate the officers was
justified. Because Plaintiffs received sufficient notice and “some kind of hearing,” it is
arguable that Plaintiffs were afforded all the process that was due prior to their official
termination. See Cleveland Bd. of Educ., supra.
More importantly, the State of Alabama provides an adequate post-deprivation
remedy. Alabama state courts “review employment termination proceedings both to
determine whether they are supported by substantial evidence and to see that the proceedings
comport with procedural due process.” See Bell v. City of Demopolis, 86 F.3d 191, 192 (11th
Cir.1996). Thus, a sufficient state remedy is available. This court therefore concludes that
summary judgment should be granted in favor of the City of Lanett on the Plaintiffs'
procedural due process claim.
To the extent Plaintiffs assert that their substantive due process rights were violated,
the court concludes their claims are without merit. The substantive component of the due
process clause protects those rights which are "fundamental, that is, rights that are implicit
in the concept of ordered liberty.” Palko v. Connecticut, 302 U.S. 319, 325 (1937).5 To
trigger protection under the substantive due process clause, the right asserted by the plaintiffs
“must be so fundamental that our democratic society and its inherent freedoms would be lost

5

Palko v. Connecticut, 302 U.S. 319, 325 (1937), was overruled on other grounds by Benton v.
Maryland, 395 U.S. 784 (1969). In Benton, the court held that the double jeopardy prohibition of
the Fifth Amendment applies to the states through the Fourteenth Amendment and overruled Palko
“insofar as it is inconsistent with this holding.” 395 U.S. at 794.

15

if that right were to be violated.” Moates v. Strength, 57 F. Supp. 2d 1305, 1309 (M.D. Ala.
1999) (citing McKinney v. Pate, 20 F.3d 1550, 1561 11th Cir. 1994)). Traditionally, the
types of interests recognized under substantive due process include rights of privacy, family
and procreation – those rights that are so central to individual freedom which "neither liberty
nor justice would exist if [they] were sacrificed.” Palko, 302 U.S. at 325-326; see also,
Harrah Indep. Sch. Dist. v. Martin, 440 U.S. 194, 198 (1979) (collecting cases discussing
interests traditionally accorded substantive due process protection). State-created rights are
not subject to substantive due process protection under the due process clause because
"substantive due process rights are created only by the Constitution." Regents of the Univ.
of Mich. v. Ewing, 474 U.S. 214, 229 (1988). In McKinney, the Eleventh Circuit sitting en
banc also concluded that state-created rights are not entitled to substantive due process
protection. 20 F.3d at 1556-57.
Given these authorities, the dispositive question in this case is whether Plaintiffs have
a fundamental right created under the United States Constitution to recover for claims
concerning the termination of their employment. The court concludes that they do not.
Plaintiffs’ lawsuit concerns the termination of their employment, the underlying substance
of which concerns neither the right to privacy nor marital or familial interests. Furthermore,
Plaintiffs have not demonstrated why an ability to recover damages for what appears to be
a relatively simple claim of wrongful termination is a fundamental right deeply rooted in

16

history or implicit in the concept of ordered liberty. Based on the foregoing, the court
concludes that the Motions for Summary Judgment with respect to Plaintiffs’ federal
substantive due process claim is due to be granted.
B. The State Law Claims
The court’s exercise of supplemental jurisdiction over the remaining state law claims
is discretionary. Under 28 U.S.C. § 1367(c)(3), the court may “decline to exercise
supplemental jurisdiction over a [state law] claim if the district court has dismissed all claims
over which it has original jurisdiction . . . ” The court’s discretion is advised by United
Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966), in which the Court held that
[n]eedless decisions of state law should be avoided both as a matter of comity
and to promote justice between the parties, by procuring for them a surerfooted reading of applicable law. Certainly, if the federal claims are dismissed
before trial, even though not insubstantial in a jurisdictional sense, the state
claims should be dismissed as well.
Id. at 726. In Carnegie-Mellon University v. Cohill, the Supreme Court reiterated that "when
the federal-law claims have dropped out of the lawsuit in its early stages and only state-law
claims remain, the federal court should decline the exercise of jurisdiction by dismissing the
case without prejudice . . . .” 484 U.S. 343, 350 (1988).

Under certain circumstances, the court may remand supplemental state law claims to
state court. Although a remand of supplemental state law claims is not encompassed within

17

the two express provisions for remand in the removal statutes, see 28 U.S.C. §§ 1441(c),
1447(c), the court has inherent authority to remand the state law claims. Cf. Snapper v.
Redan, 171 F.3d 1249, 1263 n. 26 (11th Cir. 1999) (acknowledging the district court’s
“inherent power to remand a removed case when appropriate to enforce a forum selection
clause”), citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. at 354 (holding that
Congressional “silence cannot sensibly be read to negate the power to remand”). The
discretion to remand supplemental state law claims “‘enables district courts to deal with
cases involving [state law] claims in the manner that best serves the principles of economy,
convenience, fairness and comity. . . .’” Snapper, supra (quoting Carnegie-Mellon, 484 U.S.
at 357). “Any time a district court dismisses, rather than remands, a removed case involving
[state law] claims, the parties will have to refile their papers in state court, at some expense
of time and money.” Carnegie-Mellon, 484 U.S. at 353. Furthermore, the pleadings
demonstrate that the statute of limitations for filing the state law claims has expired.
Therefore, a remand of the state law issues to the Chambers County Circuit Court will enable
Plaintiffs, seemingly without being subject to problems such as limitations, to pursue their
state law claims in state court. See Hardy v. Birmingham Bd. of Educ., 954 F.2d 1546, 1553
(11th Cir. 1992) (allowing remand of state law issues to state court in order to enable
appellant to avoid the statute of limitations).
The court thus declines to exercise supplemental jurisdiction over Plaintiffs’ state law

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claims. Upon consideration of the principles of judicial economy, convenience, fairness, and
comity, the court concludes that the state law claims are due to be remanded to the Chambers
County Circuit Court.
V. CONCLUSION
Accordingly, it be and is hereby ORDERED that:
1.

The Motion for Summary Judgment with respect to the federal due process

claims be GRANTED in favor of the City of Lanett.
2.

The federal due process claims be dismissed with prejudice.

3.

The state law claims be REMANDED to the Chambers County Circuit Court.

The Clerk of the Court be and is hereby DIRECTED to take the action necessary to
accomplish the remand of this case to the Circuit Court of Chambers County.
Done this 22nd day of July, 2013.

/s/Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

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