Lewis v. McCall et al

Filing 86

MEMORANDUM OPINION AND ORDER: it is ORDERED: Dfts' 73 motion for summary judgment as to all claims of the Plf is GRANTED; Plf's 72 motion for partial summary judgment is DENIED; Dfts McWaters and Short's 78 motion to strike is denied as MOOT; The Court will enter a separate final judgment, and the Clerk is directed to close this docket. Signed by Honorable Judge David A. Baker on 12/6/2017. (alm, )

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
MORRIS LEWIS, et al.,
Plaintiffs,
v.
HUGH B. MCCALL, et al.,
Defendants.

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Case No. 3:15-cv-112-DAB

MEMORANDUM OPINION AND ORDER
This case arises out of claims by Plaintiffs Morris Lewis and Lewis
Transportation (collectively referred to hereinafter as “Lewis”) that the Defendants
have engaged in discriminatory assignments of tow-truck jobs and have ultimately
removed Lewis Transportation from the rotations list for such assignments. The
following are named as Defendants: Hugh B. McCall, the Director of the Alabama
Department of Public Safety (“Department”); Post Commander Sergeant McWaters;
Lieutenant Suzanne Capps; Captain Ron Short; and Major Kerry Chapman.
Defendant McCall is sued only in his official capacity while the remaining
defendants are sued both their individual and official capacities. Lewis brings claims
for denial of equal protection (Counts One and Two) and denial of procedural due
process (Count Three).

Lewis’s Complaint is the operative pleading. (Doc. 1). Therein, Lewis seeks
to state federal claims arising out of both the Due Process and Equal Protection
Clauses of the Fourteenth Amendment, by and through the remedial vehicle of 42
U.S.C. § 1983.1 Before the court are the following motions: Lewis’s Motion for
Partial Summary Judgment as to Defendants Short and McWaters (Doc. 72);
Defendants Motion for Summary Judgment (Doc. 73); and Defendants Short and
McWaters’s Motion to Strike Plaintiffs’ Motion for Partial Summary Judgment
(Doc. 78).
I.

JURISDICTION
Subject matter jurisdiction over Lewis’s federal claims is conferred by 28

U.S.C. § 1331. The parties do not dispute venue or personal jurisdiction, and there
are adequate allegations in Lewis’s Complaint to support both. On March 24, 2017,
the parties consented to Magistrate Judge Jurisdiction for all matters pursuant to Rule
73, Fed. R. Civ. P., and 28 U.S.C. § 636(c), and an order was entered reassigning the
case to the undersigned as the presiding judge. (Docs. 51-53).
II.

BACKGROUND AND FACTS
Morris Lewis, an African-American male, owns Lewis Transportation, a

towing service contractor. (Doc. 1 at ¶¶ 1-2, 10, 17, and 20). Lewis has alleged that,

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Lewis’s § 1983claims against the Defendants in their official capacities have been dismissed.
(Doc. 28).

with respect to the assignment of tow truck jobs, “the State of Alabama by and
through individual actors under color of state law continue to violate Lewis’
constitutional rights to be free of race discrimination, arbitrary/capricious decisions
and deprivation of procedural due process.” (Doc. 1 at ¶ 11). According to Lewis,
“[t]he State of Alabama establishes rules and regulations for placement on the
[assignment] list and requirements to stay on the list.” (Id. at ¶ 34). The Defendants,
who are members of the Department and collectively identified by Lewis as the
Alabama State Troopers, “are the sole assignors of Tow truck Activities on Alabama
interstate, county and state roads.” (Id. at ¶ 10).
On June 25, 2014, Defendant Short, in his capacity as Trooper G Commander
of the Alabama State Troopers, sent a letter to Lewis notifying him “that your
company is being removed from the Alabama Department of Public Safety’s
Rotation Wrecker System … due to failing to comply with rules and regulations
listed in the Towing and Recovery Services Manual.” (Doc. 73-1 at 1). On June 27,
2014, Lewis, by counsel, requested a formal hearing on the removal. (Doc. 73-2).
After the hearing, Defendant Short informed Lewis that he could reapply for the
wrecker list on October 1, 2014, and Lewis testified that he submitted his application
on December 1, 2014. (Doc. 73-4 at 26). Once an application has been submitted by
a wrecker company for inclusion on a list, no set amount of time is prescribed for
consideration of an application and review may vary from one to six months,

depending on the number of applications pending and the complexity of inspections
to be completed in support of the application. (Doc. 73-6 at 5-6).
Lewis filed his Complaint in this Court on February 12, 2015, alleging counts
pursuant to 42 U.S.C. § 1983, two of which were for violations of Equal Protection
and one count of denial of Procedural Due Process. At the hearing before this Court
on August 15, 2017, counsel for Plaintiff specifically stated that he was not pursuing
the claims of Equal Protection. Accordingly, Counts I and II are due to be dismissed.
The remaining Count for Procedural Due Process alleged that the Defendants
“removed plaintiff from the correct order of the list and subsequently completely
from the list.”
III.

SUMMARY JUDGMENT STANDARD OF REVIEW
“The court shall grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). In ruling on a motion for summary judgment,
the Court construes the facts and all reasonable inferences therefrom in the light most
favorable to the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 150 (2000). However, when faced with a “properly supported motion for
summary judgment, [the nonmoving party] must come forward with specific factual
evidence, presenting more than mere allegations.” Gargiulo v. G.M. Sales, Inc., 131
F.3d 995, 999 (11th Cir. 1997).

Summary judgment is mandated “against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and
on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). “Summary judgment may be granted if the non-moving
party’s evidence is merely colorable or is not significantly probative.” Sawyer v.
Southwest Airlines Co., 243 F. Supp. 2d 1257, 1262 (D. Kan. 2003) (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 250–51 (1986)).
“[A]t the summary judgment stage the judge’s function is not himself to weigh
the evidence and determine the truth of the matter but to determine whether there is
a genuine issue for trial.” Anderson, 477 U.S. at 249. “Essentially, the inquiry is
‘whether the evidence presents a sufficient disagreement to require submission to
the jury or whether it is so one-sided that one party must prevail as a matter of law.’”
Sawyer, 243 F. Supp. 2d at 1263 (quoting Anderson, 477 U.S. at 251–52).
IV.

ANALYSIS
At oral argument, Plaintiff conceded that his only claim was for deprivation

of Procedural Due Process due to the Department’s alleged delay in processing his
reinstatement. Plaintiff has admitted that he chose to delay his application for two
months after he was eligible to reapply, and further testified that he knew an
application would be processed more slowly during the holidays. (Doc. 73-4 at 27).
Plaintiff further testified that he called the Department about his application in

January 2015, and was informed that the Department “had a new sergeant, and he
was looking over the application, and they’d let me know something in a few days.”
Mere delay in processing an administrative application, while perhaps a
proper subject for a state court case for mandamus, does not set forth a claim for
deprivation of a constitutional right on which to base a federal case. Plaintiff argues
that “[t]he present case centers upon a factual paradigm where the state employees
agreed the plaintiff should return to the rotation list.” (Doc. 77 at 1). However,
Plaintiff has failed to direct this court to any evidence in the record that would
support his allegation that he was entitled to a determination on his application
within a specific time period; that the time period between his application and the
date he filed suit was unreasonable, unusual, or otherwise a deprivation of his rights;
or that he exhausted or even initiated any effort to achieve a determination on his
application prior to filing this suit alleging deprivation of due process. The Alabama
Administrative Procedures Act, § 41-22-11, Ala. Code 1975 (“AAPA”), provides
that “On the petition of any person substantially affected by a rule, an agency my
issue a declaratory ruling with respect to the validity of the rule or with respect to
the applicability to any person, property or state of facts…” The AAPA further
provides that “Such rulings are subject to review in the Circuit Court of Montgomery
County” and that “Failure of the agency to issue a declaratory ruling on the merits
within 45 days of the request for such a ruling shall constitute a denial of the request

as well as a denial of the merits of the request and shall be subject to judicial review.”
§ 41-22-11(b). Plaintiff did not seek review under the AAPA.
Moreover, even if the AAPA had been insufficient to secure a determination
on Plaintiff’s application, the Eleventh Circuit has held that “Under [state] law, when
no other specific legal remedy is available and a party has a clear legal right to have
a certain act performed, a party may seek mandamus. ... And, although mandamus
will not normally issue to compel the performance of a discretionary act, it is
available when an official abuses his discretion.” Cotton v. Jackson, 216 F.3d 1328,
1332 (11th Cir. 2000). Plaintiff did not seek mandamus or any other available
remedy. “The availability of those remedies, if they are adequate to protect Plaintiff's
right to have a name-clearing hearing, would preclude a procedural due process
claim. And, if they are inadequate to protect Plaintiff's right to a hearing, then
mandamus would still be available to Plaintiff, and he would be precluded from
bringing a procedural due process claim.” Cotton, 216 F.3d at 1332 n. 3.
Accordingly, Defendants’ motion for summary judgment as to Plaintiff’s procedural
due process claim is due to be granted, and the other matters raised in the pleadings
and briefs are therefore moot and need not be analyzed.
V.

CONCLUSION
For the reasons stated, it is ORDERED:

Defendants’ motion for summary judgment as to all claims of the Plaintiff
(Doc. 73) is GRANTED. Plaintiff’s motion for partial summary judgment (Doc. 72)
is DENIED. Defendants McWaters and Short’s motion to strike (Doc. 78) is denied
as MOOT. The Court will enter a separate final judgment, and the Clerk is directed
to close this docket.
DONE and ORDERED this 6th day of December 2017.

_________________________
David A. Baker
United States Magistrate Judge