Coke v. The Housing Authority, Birmingham District et al

Filing 19

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 7/23/2014. (JLC)

FILED
2014 Jul-23 PM 01:18
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
EDWARD M. COKE,
Plaintiff,
v.
THE BIRMINGHAM DISTRICT
HOUSING AUTHORITY, et al.,
Defendants.

]
]
]
]
]
]
]
]
]
]

Case No.: 2:14-CV-0585-VEH

MEMORANDUM OPINION
I.

Introduction
Plaintiff Edward M. Coke (“Mr. Coke”) initiated this action on March 31,

2014, and is representing himself. (Doc. 1). Pending before the court is Defendants’
Motion to Dismiss (Doc. 9) (the “Motion”) filed on April 22, 2014.
On April 30, 2014, the court entered a briefing order on the Motion and
expressly cautioned Mr. Coke that the shotgun nature of his complaint made it very
difficult to decipher the nature of his claims. (Doc. 10 at 2-3). Mr. Coke filed his
opposition to the Motion on July 7, 2014. Mr. Coke has never filed an amended
complaint. Defendants did not file a reply brief. Having studied both sides’
contentions, the Motion is due to be granted as modified below.

II.

Standards
A.

Pro Se Pleadings

As an initial matter, “[p]ro se pleadings are held to a less stringent standard
than pleadings drafted by attorneys and will, therefore, be liberally construed.”
Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (citing
Fernandez v. United States, 941 F.2d 1488, 1491 (11th Cir. 1991)). Accordingly, Mr.
Coke’s allegations asserted against Defendants are not appropriately subject to
dismissal simply because they lack procedural precision or completeness in the
context of Rule 8 of the Federal Rules of Civil Procedure.
B.

Rule 12(b)(6) Dismissal Standard

A Rule 12(b)(6) motion attacks the legal sufficiency of the complaint. See Fed.
R. Civ. P. 12(b)(6) (“[A] party may assert the following defenses by motion: (6)
failure to state a claim upon which relief can be granted[.]”). The Federal Rules of
Civil Procedure require only that the complaint provide “‘a short and plain statement
of the claim’ that will give the defendant fair notice of what the plaintiff’s claim is
and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99,
103, 2 L. Ed. 2d 80 (1957) (footnote omitted) (quoting Fed. R. Civ. P. 8(a)(2)),
abrogated by Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955,
1965, 167 L. Ed. 2d 929 (2007); see also Fed. R. Civ. P. 8(a) (setting forth general
2

pleading requirements for a complaint including providing “a short and plain
statement of the claim showing that the pleader is entitled to relief”).
While a plaintiff must provide the grounds of his entitlement to relief, Rule 8
does not mandate the inclusion of “detailed factual allegations” within a complaint.
Twombly, 550 U.S. at 555, 127 S. Ct. at 1964 (quoting Conley, 355 U.S. at 47, 78 S.
Ct. at 103). However, at the same time, “it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). “[O]nce a claim has been
stated adequately, it may be supported by showing any set of facts consistent with the
allegations in the complaint.” Twombly, 550 U.S. at 563, 127 S. Ct. at 1969.
“[A] court considering a motion to dismiss can choose to begin by identifying
pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950. “While legal
conclusions can provide the framework of a complaint, they must be supported by
factual allegations.” Id. “When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly give rise to
an entitlement to relief.” Id. (emphasis added). “Under Twombly’s construction of
Rule 8 . . . [a plaintiff’s] complaint [must] ‘nudge[] [any] claims’ . . . ‘across the line
from conceivable to plausible.’ Ibid.” Iqbal, 556 U.S. at 680, 129 S. Ct. at 1950-51.
3

A claim is plausible on its face “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, 556 U.S. at 678, 129 S. Ct. at 1949. “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. (quoting Twombly, 550 U.S. at
556, 127 S. Ct. at 1965).
III.

Analysis
Mr. Coke’s complaint appears to assert procedural due process and equal

protection claims, pursuant to 42 U.S.C. § 1983, arising out of his former employment
with the Housing Authority Birmingham District (“HABD”) as an HQS inspector.
(Doc. 1 ¶¶ 1-2). As outlined by Defendants in their Motion, these purported
constitutional violations are all implausibly alleged.
Mr. Coke’s Purported Procedural Due Process Claims
“The success of due process arguments depends upon the finding of a
constitutionally protected property interest in the expectation of continued
employment or of a liberty interest having been infringed upon by the State; absent
such interest, no due process protections attach.” Gray v. Board of Regents of Univ.
System of Georgia, 150 F.3d 1347, 1350 (11th Cir. 1998) (citing Board of Regents
v. Roth, 408 U.S. 564, 569-70, 92 S. Ct. 2701, 2705, 33 L. Ed. 2d 548 (1972)).
4

Mr. Coke’s procedural due process claims fail for multiple reasons. First,
because Mr. Coke has not alleged and cannot reasonably assert a “legitimate claim
of entitlement” to his position as an HQS inspector for HABD, he has no plausible
due process claim premised upon the deprivation of a property interest.
As explained by the United States Supreme Court in Roth, when it analyzed the
constitutional rights of a comparably situated non-tenured teacher, an “abstract”
concern about continuing public sector employment, without more, is insufficient to
sustain a procedural due process claim:
Certain attributes of ‘property’ interests protected by procedural
due process emerge from these decisions. To have a property interest in
a benefit, 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. It is a purpose of the constitutional right to a hearing to
provide an opportunity for a person to v[i]ndicate those claims.
Property interests, of course, are not created by the Constitution.
Rather they are created and their dimensions are 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. . . .
Thus, the terms of the respondent’s appointment secured
absolutely no interest in re-employment for the next year. They
supported absolutely no possible claim of entitlement to re-employment.
Nor, significantly, was there any state statute or University rule or policy
that secured his interest in re-employment or that created any legitimate
5

claim to it. In these circumstances, the respondent surely had an abstract
concern in being rehired, but he did not have a property interest
sufficient to require the University authorities to give him a hearing
when they declined to renew his contract of employment.
Roth, 408 U.S. at 577-78, 92 S. Ct. at 2709-10 (footnote omitted) (emphasis added).
Second, while a public sector employee can, under certain circumstances,
pursue a procedural due process claim on the basis of a compromised liberty interest,
see, e.g., Buxton v. City of Plant City, 871 F.2d 1037, 1042-43 (11th Cir. 1989) (“The
district court required that Buxton prove: (1) a false statement (2) of a stigmatizing
nature (3) attending a governmental employee’s discharge (4) made public (5) by the
governmental employer (6) without a meaningful opportunity for employee name
clearing.”) (footnotes omitted), here Mr. Coke has not plausibly asserted the presence
of these prima facie elements. In particular, the court does not see any allegations that
HABD has made the nature of Mr. Coke’s dismissal available to the “public” or that
he has endured “reputational damage” from this disclosure within the meaning of
Buxton. Id. at 1046; see also id. at 1045 (“Because of the stigmatizing material in
Buxton’s personnel file and the internal affairs report of the English incident, both a
part of the public records pursuant to Fla. Stat. §§ 119.01 and 119.07, Buxton has
been foreclosed from several employment opportunities.”) (emphasis added); id. at
1045-46 (“Accordingly, we reverse the judgment of the district court and hold that

6

the presence of stigmatizing information placed into the public record by a state
entity, pursuant to a state statute or otherwise, constitutes sufficient publication to
implicate the liberty interest under the due process clause of the fourteenth
amendment to the United States Constitution.”); cf. Thomason v. McDaniel, 793 F.2d
1247, 1250 (11th Cir.1986) (holding that discharged part-time law enforcement
officer “did not satisfy the requirement of publication because he ha[d] failed to
establish that any disclosure of the reasons for the discharge, that is, the substance of
the complaints, was ever made to the general public.”).
Alternatively, to the extent that Mr. Coke has plausibly asserted a due process
violation premised upon either a deprivation of a property interest or, alternatively,
a liberty interest, his complaint confirms that he participated in a post-discharge
appeals process. Further, Mr. Coke fails to articulate how his procedural due process
rights were compromised in a cognizable manner.
As the Eleventh Circuit explained in McKinney v. Pate, 20 F.3d 1550 (11th Cir.
1994):
[D]ue process is satisfied when the challenger has an opportunity to
present his allegations and to demonstrate the alleged bias. A
demonstration that the decisionmaker was biased, however, is not
tantamount to a demonstration that there has been a denial of procedural
due process. As we mention above, unlike substantive due process
violations, procedural due process violations do not become complete
“unless and until the state refuses to provide due process.” Zinermon,
7

494 U.S. at 123, 110 S. Ct. at 983. More specifically, in the case of an
employment termination case, “due process [does not] require the state
to provide an impartial decisionmaker at the pre-termination hearing.
The state is obligated only to make available ‘the means by which [the
employee] can receive redress for the deprivations.’” Schaper v. City of
Huntsville, 813 F.2d 709, 715–16 (5th Cir. 1987) (quoting Parratt v.
Taylor, 451 U.S. 527, 543, 101 S. Ct. 1908, 1917, 68 L. Ed. 2d 420
(1981)) (footnote omitted).
In Parratt (and its progeny, Hudson v. Palmer, 468 U.S. 517, 104
S. Ct. 3194, 82 L. Ed. 2d 393 (1984)), the Supreme Court held that due
process did not require pre-deprivation hearings where the holding of
such a hearing would be impracticable, that is, where the deprivation is
the result of either a negligent or an intentional deprivation of property.
All that due process requires, the Court said, is a post-deprivation
“means of redress for property deprivations satisfy[ing] the requirements
of procedural due process.” Parratt, 451 U.S. at 537, 101 S. Ct. at 1914;
accord Hudson, 468 U.S. at 533, 104 S. Ct. at 3204.
The precedent established by Parratt is unambiguous: even if
McKinney suffered a procedural deprivation at the hands of a biased
Board at his termination hearing, he has not suffered a violation of his
procedural due process rights unless and until the State of Florida
refuses to make available a means to remedy the deprivation. As any
bias on the part of the Board was not sanctioned by the state and was the
product of the intentional acts of the commissioners, under Parratt, only
the state’s refusal to provide a means to correct any error resulting from
the bias would engender a procedural due process violation. It is to an
examination of this state remedy—and a determination of whether it
satisfies due process—that we now turn.
In this case, McKinney failed to take advantage of any state
remedies, opting instead to pursue his claim in federal court. In his en
banc brief, McKinney asserts that the state remedy—review by Florida
courts—is insufficient, largely because the statute of limitations for
certiorari petitions of termination cases is significantly shorter than that
for torts. McKinney also states that the state court procedure is deficient
8

because the Florida courts’ power to review is limited to the record
before the Board. We disagree with McKinney’s conclusion that
Florida’s process is inadequate.
McKinney, 20 F.3d at 1562-63 (footnote omitted) (emphasis added).
Here, while Mr. Coke has criticized the outcome of his post-termination and/or
name-clearing hearing before the HABD, he has not “allege[d] in his complaint that
the state procedures [available to remedy any infirmity in that process] were
inadequate.” 20 F.3d at 1563 n.18. Therefore, akin to McKinney, Mr. Coke has not
plausibly stated a procedural due process violation because he has not asserted (and
cannot reasonably assert) that Alabama “refuses to make available a means to remedy
the deprivation.” Id. at 1563; see also id. at 1557 (“In other words, the state may cure
a procedural deprivation by providing a later procedural remedy; only when the state
refuses to provide a process sufficient to remedy the procedural deprivation does a
constitutional violation actionable under section 1983 arise.”). Accordingly,
Defendants’ Motion is due to be granted with respect to Mr. Coke’s due process
claims.
Mr. Coke’s Purported Equal Protection Claims
As the Eleventh Circuit has summarized the scope of protections afforded by
the equal protection clause:
[T]he Equal Protection Clause requires government entities to treat
9

similarly situated people alike. Equal protection claims are not limited
to individuals discriminated against based on their membership in a
vulnerable class. Rather, we have recognized any individual’s right to
be free from intentional discrimination at the hands of government
officials.
Campbell v. Rainbow City, 434 F.3d 1306, 1313 (11th Cir. 2006) (citing E&T Realty
v. Strickland, 830 F.2d 1107, 1112 (11th Cir. 1987)).
Mr. Coke’s purported equal protection claims also do not meet Twombly’s
plausibility standard. In particular, nowhere within his complaint does Mr. Coke
contend that intentional discrimination connected to his “race, religion, national
origin, or some other constitutionally protected basis” played a part in Defendants’
employment-related treatment of him. Sweet v. Secretary, Dept. of Corrections, 467
F.3d 1311, 1319 (11th Cir. 2006) (citing Jones v. Ray, 279 F.3d 944, 946-47 (11th
Cir. 2001)).
Further, the Supreme Court has made it clear that “a public employee can[not]
state a claim under the Equal Protection Clause by alleging that she was arbitrarily
treated differently from other similarly situated employees, with no assertion that the
different treatment was based on the employee’s membership in any particular
class.”Engquist v. Oregon Dept. of Agr., 553 U.S. 594, 598, 128 S. Ct. 2146, 2148,
170 L. Ed. 2d 975 (2008); see id., 128 S. Ct. at 2148-49 (“We hold that such a
‘class-of-one’ theory of equal protection has no place in the public employment
10

context.”); see also id. at 598, 128 S. Ct. at 2151 (“Our traditional view of the core
concern of the Equal Protection Clause as a shield against arbitrary classifications,
combined with unique considerations applicable when the government acts as
employer as opposed to sovereign, lead us to conclude that the class-of-one theory of
equal protection does not apply in the public employment context.”).
Instead, “the Equal Protection Clause is implicated when the government
makes class-based decisions in the employment context, treating distinct groups of
individuals categorically differently.” Enquist, 553 U.S. at 605, 128 S. Ct. at 2155.
Therefore, in the absence of an allegation that Defendants’ treatment of Mr. Coke is
tied to some type of class-based discrimination, the equal protection clause is not
plausibly available to Mr. Coke. See id. at 609, 128 S. Ct. at 2157 (“[R]atifying a
class-of-one theory of equal protection in the context of public employment would
impermissibly ‘constitutionalize the employee grievance.’” (quoting Connick v.
Myers, 461 U.S. 138 at 154, 103 S. Ct. 1684, 1694, 75 L. Ed. 2d 708 (1983))).
Accordingly, Defendants’ Motion is due to be granted with respect to Mr. Coke’s
equal protection claims.
IV.

Conclusion
For the reasons stated above, the Motion is due to be granted. However,

because Mr. Coke is proceeding pro se and because he has attempted, at least to some
11

extent, to explain why his claims might be cognizable in his brief filed in opposition
to the Motion, his claims are due to be dismissed without prejudice to the right to
reassert them in a plausible fashion by way of an amended pleading to be filed no
later than August 25, 2014. The court will enter a separate order.
DONE and ORDERED this 23rd day of July, 2014.

VIRGINIA EMERSON HOPKINS
United States District Judge

12