Smith v. City Of Mobile et al
Filing
65
ORDER granting 59 Stimpson's Motion for Summary Judgment as to remaining federal claims against him in Counts I and III, which are dismissed with prejudice, all remaining state law claims in this action are dismissed without prejudice; the p ending 58 , 59 Motions for Summary Judgment are moot to the extent they are not otherwise disposed of in order. The final pretrial conference and all remaining deadlines are canceled. Signed by Magistrate Judge Katherine P. Nelson on 12/12/17. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MICHAEL SMITH,
Plaintiff,
v.
CITY OF MOBILE, et al.,
Defendants.
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CIVIL ACTION NO. 16-00478-N
ORDER
Over the course of several orders, the Court has disposed of most of the federal
claims in this action. (See Docs. 31, 50, 55). Currently, the only pending federal
claims are the pre-deprivation procedural due process claims asserted under 42
U.S.C. § 1983 against Defendant Mayor Sandy Stimpson in his official and
individual capacities in Counts I and III of the complaint (Doc. 1). (See Doc. 55 at
14 – 15). Stimpson has filed a motion for summary judgment under Federal Rule of
Civil Procedure 56 as to those remaining federal claims, as well as the state law
claims asserted against him (Doc. 59). Plaintiff Michael Smith has timely filed a
response (Doc. 62) in opposition to the motion, and Stimpson has timely filed a reply
(Doc. 64) to the response. The motion is now under submission (see Doc. 60) and is
ripe for disposition.1
Upon consideration, the Court finds that Stimpson’s motion
for summary judgment is due to be GRANTED as to the remaining federal claims
against him, and that all remaining state law claims are due to be DISMISSED
without prejudice.
With the consent of the parties, the Court has designated the undersigned Magistrate
Judge to conduct all proceedings in this civil action in accordance with 28 U.S.C. §
636(c), Federal Rule of Civil Procedure 73, and S.D. Ala. GenLR 73. (See Docs. 27, 28).
1
The Court assumes the parties’ familiarity with the record and procedural
history of this case and will therefore state only what is necessary to resolve the
remaining claims in this action.
I.
A.
Analysis
Remaining Federal Claims against Stimpson
It is axiomatic that, in general, the Constitution requires that the state
provide fair procedures and an impartial decisionmaker before
infringing on a person’s interest in life, liberty, or property. More
specifically, the Supreme Court has explained that a “tenured employee
is entitled to oral or written notice of the charges against him, an
explanation of the employer's evidence, and an opportunity to present
his side of the story” before a state or state agency may terminate an
employee. [Cleveland Bd. Of Educ. v. ]Loudermill, 470 U.S. [532,] 546,
105 S. Ct. [1478,] 1495[ (1985)]. In other words, the employee is entitled
to “some kind” of pre-termination hearing. Id. at 542, 105 S. Ct. at
1493. That hearing is not a mini-trial and “need not definitely resolve
the propriety of the discharge. It 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. at 545–46, 105 S. Ct. at
1495.
McKinney v. Pate, 20 F.3d 1550, 1561 (11th Cir. 1994) (en banc).
As the record evidence shows, Stimpson terminated Smith from his position
as a police officer with the City of Mobile by notice dated September 9, 2014, and
served on Smith three days later, after “concur[ring] with the recommendation” for
same made by “a non-adversary Trial Board.”
(See Doc. 41-6). Prior to Smith’s
termination, on August 29, 2014, Smith was served with a “Disciplinary Trial Board
Notice” advising him that a “non-adversary Administrative Trial Board Hearing”
would be held at Mobile Police Headquarters on September 3, 2014, beginning at
9:00 a.m.
(Doc. 41-5 at 1)).
Included with the Notice was a “Charge Sheet”
advising Smith of the five disciplinary charges against him and providing the
specific factual details underlying each charge. (Id. at 2 – 5). The trial board
hearing convened as scheduled, at which Smith, assisted by retained counsel, was
able to testify on his own behalf and present witnesses to testify on his behalf. (See
Doc. 59-1 at 4; Doc. 41-9 at 153 – 154). “He thus received a pre-termination hearing
and, with it, all the process due under Loudermill.”
McKinney, 20 F.3d at 1561–62
(finding ex-employee received sufficient pre-termination process where he “received
written notice of the charges against him; at the Board hearing, he also heard an
explanation of the Board's evidence; finally, with the assistance of counsel, he had
the opportunity to present his side of the story through witnesses, evidence, and
argument”).2
2
See also Hardy v. Wood, 342 F. App’x 441, 445–46 (11th Cir. 2009) (per curiam)
(unpublished) (“[T]he undisputed evidence shows that Hardy was given adequate
pre-termination notice and an opportunity to be heard. First, Spann and Hardy
discussed McMillian’s sexual harassment charges in the taped June 28, 2005 interview.
Spann informed Hardy of specific events McMillian claimed constituted inappropriate
behavior. Second, Defendant Wood's November 4, 2005 letter informed Hardy of the
allegations against him, including that he (1) made sexual advances towards McMillian,
and (2) attempted to instigate an investigation against McMillian because she had filed
a sexual harassment complaint against him. Wood's letter listed by number the
personnel rules Hardy allegedly violated. The letter informed Hardy there would be a
pre-termination hearing on the allegations, at which he could present evidence and be
represented by counsel. []The record shows that, at the pre-termination hearing, Hardy
was represented by counsel, submitted numerous documents and called eight witnesses
in his defense. Indeed, one of the documents Hardy placed in evidence was DYS's
grievance procedure, indicating that he understood that his filing of the grievance was
at issue in the hearing. Because the undisputed facts show that Hardy was informed of
the charges against him and had an opportunity to present his side of the story, there is
no genuine issue of material fact as to whether Wood violated Hardy's right to
procedural due process before Hardy's termination.”); Ogburia v. Cleveland, 380 F.
App’x 927, 929–30 (11th Cir. 2010) (per curiam) (unpublished) (““[I]t is undisputed that
Smith’s primary complaint is that he “was not afforded an opportunity to tell
his side of the story to” Stimpson, the final decision-maker, because Stimpson was
not present at the trial board hearing.
(Doc. 62 at 3). However, the Eleventh
Circuit Court of Appeals has rejected the contention that, “as a matter of law, a
pre-termination hearing must be held before the ‘ultimate decision-maker’ in order
to satisfy procedural due process.”
Laskar v. Peterson, 771 F.3d 1291, 1298 (11th
Cir. 2014). See also Martin v. Guillot, 875 F.2d 839, 844 (11th Cir. 1989) (finding
the “minimum constitutional standards for procedural due process” were met where,
inter alia, employee “received a hearing before a due process committee which
recommended that his employment be terminated[, and, a]fter a review, the
president accepted the committee’s recommendation”).
In addition to his not attending the hearing, Smith also appears to claim that
Stimpson did not review any of the evidence presented at the trial board hearing
prior to adopting the trial board’s recommendation, asserting that Stimpson “could
not have read a transcript of the pre-disciplinary hearing before making his final
decision…- as it was not transcribed for weeks thereafter.”
(Doc. 62 at 3). Smith
cites no record evidence supporting this assertion. Regardless, even if the assertion
is true, Smith has failed to persuade the undersigned that it is of any legal
Ogburia was advised regarding the charges against him by receiving a letter from
Human Resources detailing the charges and copies of the formal complaints.
Additionally, Ogburia provided the Investigation Committee with detailed written
responses, complete with exhibits, denying the sexual harassment allegations. Ogburia
also verbally denied the allegations and presented his side of the story to the
Investigation Committee. Thus, Ogburia was provided both notice and an opportunity to
respond, and the district court did not err in concluding he received adequate
pre-termination due process.”).
significance in this context.
It is true that the Laskar panel noted the ultimate decision-maker was
provided “a copy of the [pre-termination] hearing record” prior to adopting the
recommendation of the committee that held the hearing. See 771 F.3d at 1298.
However, nothing in Laskar indicated that this detail was dispositive of, or even
material to, the holding in that case, and Smith has cited no authority indicating
otherwise.
Given that Smith was “indisputably afforded a pre-termination
opportunity to be heard by a decisionmaker when he appeared before the” trial
board, id. (emphasis added), and given that the Mobile County Personnel Board
rules provide a full de novo evidentiary hearing and judicial review as
post-termination remedies (see Doc. 41-3 at 25 – 26 [Local Act 470, § XXXIV]; Doc.
41-4 at 55 – 56 [Board Rules 14.4 – 14.7]), any failure by Stimpson to review the
record of the trial board proceedings prior to accepting the board’s recommendation
did not render Smith’s pre-termination due process constitutionally deficient. See
Laskar, 771 F.3d at 1298 (“[I]n those cases relied upon by Laskar, the reviewing
courts suggested procedures warranted by the factual circumstances of the case or,
where particular procedures were in place, determined whether those procedures as
implemented provided due process. But, ‘not all situations calling for procedural
safeguards call for the same kind of procedure.’ Morrissey v. Brewer, 408 U.S. 471,
481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484 (1972). That there exists case law within
this Circuit and in other circuits where a pretermination hearing was held before a
final decisionmaker does not require the conclusion that the procedures applied here
failed to comport with due process.”); Loudermill, 470 U.S. at 545 (“We have pointed
out that the formality and procedural requisites for the hearing can vary, depending
upon the importance of the interests involved and the nature of the subsequent
proceedings.
In general, something less than a full evidentiary hearing is sufficient
prior to adverse administrative action. Under state law, respondents were later
entitled to a full administrative hearing and judicial review.” (citations and
quotations omitted)).
Smith’s other claims of deficient pre-termination process are also without
merit. While he complains that his counsel could “only operate as an observer” who
was “not allowed to speak or participate in the pre-disciplinary hearing” (Doc. 62 at
2), Smith has failed to show that this unconstitutionally hindered him from
“present[ing] his side of the story” to the trial board. Loudermill, 470 U.S. at 546.
Moreover, Smith has cited no authority indicating that constitutional due process
even entitled him to be represented by counsel at the pre-termination hearing. But
see Panozzo v. Rhoads, 905 F.2d 135, 140 (7th Cir. 1990) (“[A]n employee has no
constitutional right to counsel at a pre-termination hearing.” (citing Buschi v.
Kirven, 775 F.2d 1240, 1254–1256 (4th Cir. 1985)). While Smith complains that he
was only allowed to respond “ ‘ verbally’ and not in written form” (Doc. 62 at 2),
procedural due process does not require that both of those options be provided.
See
Loudermill, 470 U.S. at 546 (“The opportunity to present reasons, either in person
or in writing, why proposed action should not be taken is a fundamental due process
requirement.” (emphasis added)).
Smith also complains that, while he was not permitted to cross-examine
adverse trial board witnesses, Smith himself was cross-examined by the trial board
members and their counsel (Doc. 62 at 2).
Though Smith concedes that “due
process does not require a right to confront and cross-examine witnesses at the
pre-disciplinary hearing stage[,]” he argues that “[i]t is equally true that Loudermill
does not grant or authorize the City with a right to confront and cross-examine
Smith at the pre-disciplinary hearing stage, whether by supervisors or the legal
Counsel for the City of Mobile.”
(Doc. 62 at 13 – 14 (quotation and emphasis
omitted)). The undersigned disagrees that the trial board’s cross-examination of
Smith rendered his pre-termination due process deficient. The essential function of
a pre-termination hearing is to give an employee the “opportunity to present
reasons…why proposed action should not be taken…”
Loudermill, 470 U.S. at 546.
So long as an employee has “an opportunity to present his side of the story[,]”
Loudermill, 470 U.S. at 546, nothing in Loudermill forbids the hearing officers from
questioning that story.
Simply because a full evidentiary hearing is not required
for pre-termination due process, it does not follow that taking additional evidence
beyond simply hearing the employee’s side of the story is impermissible.
See
Harrison v. Wille, 132 F.3d 679, 684 (11th Cir. 1998) (per curiam) (“Before
termination, a full evidentiary hearing is not required.
Loudermill, 470 U.S. at
545, 105 S. Ct. at 1495. Nor does the pretermination hearing have to establish
conclusively the propriety of the termination. Id. Plaintiff need only be given an
opportunity to present his side of the story.”).
Finally, while Smith complains the trial board failed to follow various Mobile
County Personnel Board rules and regulations, “the procedural component of the
Due Process Clause does not require the States to comply with state-created
procedural rules. Instead, it requires them to adhere to a certain minimal level of
process when seeking to deprive an individual of a substantive interest protected by
the Clause—namely, ‘life, liberty, or property.’ ”
Gissendaner v. Comm'r, Ga. Dep't
of Corr., 794 F.3d 1327, 1330 (11th Cir.) (quoting U.S. Const. Amend. XIV, § 1), cert.
denied, 136 S. Ct. 25 (2015). Accord, e.g., Longmire v. City of Mobile, Ala., No. CV
16-0025-WS-M, 2017 WL 1352226, at *8 & nn. 14 -15 (S.D. Ala. Apr. 10, 2017) (citing
similar holdings). See also Panozzo, 905 F.2d at 140 (“States and municipalities are
of course free to provide greater procedural protections than those offered by the
federal constitution, but it does not follow that these enhanced protections enlarge
federal rights. The district judge correctly noted that local rules do not act as a
ratchet tightening the Due Process Clause.” (quotations omitted)). Moreover, as the
Court previously determined, any violations of the Personnel Board rules and
regulations are “the kind of ‘random, unauthorized acts’ for which ‘pre-deprivation
process is impractical.’ ”3 (Doc. 55 at 9 (quoting Hudson v. Palmer, 468 U.S. 517, 532
Smith also asks the Court to “revisit” the “issue of non-randomness,” claiming
that “the repetitive nature of the due process deprivations” renders them “not random.”
(Doc. 62 at 2 n.1. See also id. at 3 n.2 (“These acts by MPD are not random; but rather
repetitive.”)). The Court finds no reason to reconsider its previous determination on
this issue.
As best the Court can decipher, Smith, or at least his counsel, claims the Mobile
Police Department and Mayor Stimpson long ago chose to abandon any pretense of
complying with the Personnel Board’s rules for pre-termination hearings in favor of
holding “non-adversary trial boards” that are essentially “kangaroo courts” subject to
the whims of those conducting them. Even if this is true, it does not render those
3
(1984))).
Accordingly, the Court finds that Stimpson’s motion for summary judgment
(Doc. 59) is due to be GRANTED as to the remaining federal claims against him in
Counts I and III.4
B.
Remaining State Law Claims
After granting summary judgment to Stimpson on the remaining federal
claims against him, only state law claims will remain pending in this action. The
actions any less “random” and “unauthorized.” In the context of procedural due
process, “randomness” is not judged from the standpoint of the state employee, who may
indeed be acting intentionally, but rather from that of the state under the “color of
[whose] law” the employee is acting. See Nat'l Ass'n of Boards of Pharmacy v. Bd. of
Regents of the Univ. Sys. of Georgia, 633 F.3d 1297, 1317 (11th Cir. 2011) (“So long as
the State provides adequate post-deprivation remedies, ‘due process d[oes] 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.’ McKinney v. Pate, 20 F.3d 1550, 1562–63 (11th Cir. 1994) (en
banc). []Pre-deprivation process is impractical ‘where a loss of property is occasioned by
a random, unauthorized act by a state employee, rather than by an established state
procedure,’ because ‘the state cannot know when such deprivations will occur.’ Hudson,
468 U.S. at 532, 533, 104 S. Ct. at 3203.”).
The state of Alabama provides an “established state procedure” to terminate
Mobile public employees, in the form of Local Act 470 and the Personnel Board rules
carrying the force of law. By deliberately disregarding those rules, as Smith claims,
Stimpson and the trial board members commit “random, unauthorized acts” that
contravene this “established state procedure,” acts that the state cannot anticipate
regardless of how frequently they may occur. Because the state provides adequate
post-deprivation remedies to correct “random, unauthorized” violations of the Personnel
Board rules, in the form of review by both the Mobile County Personnel Board and the
Mobile County Circuit Court, procedural due process is satisfied.
While Smith’s complaint (Doc. 1) alleges other deficiencies in pre-termination process,
he has not argued them in his response to Stimpson’s present motion. Accordingly,
those grounds are deemed abandoned. See Solutia, Inc. v. McWane, Inc., 672 F.3d
1230, 1239 (11th Cir. 2012) (per curiam) (There “ ‘is no burden upon the district court to
distill every potential argument that could be made based on the materials before it on
summary judgment. Rather, the onus is upon the parties to formulate arguments;
grounds alleged in the complaint but not relied upon in summary judgment are deemed
abandoned.’ ” (quoting Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th
Cir. 1995) (en banc))).
4
Defendants have also moved for summary judgment on those claims. However, at
present, the Court exercises only supplemental jurisdiction over those claims under
28 U.S.C. § 1367(a).5 Under § 1367(c), a district court “may decline to exercise
supplemental jurisdiction over a claim under subsection (a) if…the district court has
dismissed all claims over which it has original jurisdiction…”
28 U.S.C. §
1367(c)(3). “The decision to exercise supplemental jurisdiction over pendant state
claims rests within the discretion of the district court.” Raney v. Allstate Ins. Co., 370
F.3d 1086, 1088-89 (11th Cir. 2004) (per curiam) (citing Mergens v. Dreyfoos, 166
F.3d 1114, 1119 (11th Cir. 1999)).
The Eleventh Circuit has “encouraged district courts to dismiss any
remaining state claims when, as here, the federal claims have been dismissed prior
to trial.”
Id. at 1089 (citing L.A. Draper & Son v. Wheelabrator–Frye, Inc., 735 F.2d
414, 428 (11th Cir. 1984)). Moreover, Smith requests, “[i]n the event this Federal
Court dismisses all of Smith’s Federal Claims, …that this Court will decline to
exercise supplemental jurisdiction over” his state law claims.
(Doc. 62 at 17).
Upon consideration, the Court declines to continue exercising supplemental
jurisdiction over all remaining state law claims6 in accordance with § 1367(c)(3) and
Smith has not alleged diversity of citizenship under 28 U.S.C. § 1332 as a basis for
original jurisdiction, and nothing in the record indicates that the requisites for such
jurisdiction are present.
5
The only state law claim the Court has addressed on the merits is the equal protection
claim under “Alabama’s…statutory law” in Count V, which the Court dismissed with
prejudice under Federal Rule of Civil Procedure 12(c). (See Doc. 31).
6
will thus DISMISS them without prejudice.7
II.
Conclusion
In accordance with the foregoing analysis, it is ORDERED that Stimpson’s
motion for summary judgment (Doc. 59) is GRANTED as to the remaining federal
claims against him in Counts I and III, which are DISMISSED with prejudice;
that all remaining state law claims in this action are DISMISSED without
prejudice in accordance with the authority to decline supplemental jurisdiction
under § 1367(c)(3); and that the pending motions for summary judgment (Docs. 58,
59) are MOOT to the extent they are not otherwise disposed of in this order.
The
final pretrial conference and all remaining scheduling order deadlines are
CANCELED.
Final judgment shall issue separately in accordance with this order, the
Court’s previous orders dismissing various claims, and Federal Rule of Civil
Procedure 58.
DONE and ORDERED this the 12th day of December 2017.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
Stimpson’s motion for summary judgment takes no position on the issue of
supplemental jurisdiction, while the other Defendants’ motion requests the Court
decline to exercise supplemental jurisdiction only “[i]n the event any of Smith’s state law
claims somehow survive summary judgment…” (Doc. 58 at 18). Because the Court
agrees with the other Defendants that “[t]he Alabama courts are better positioned to”
decide the state law claims in this action (see id.), the Court finds it appropriate to
decline supplemental jurisdiction over those claims without addressing their merits
first.
7
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