Cohen v. Augusta Arkansas, City of et al

Filing 56

ORDER denying 27 Motion for Summary Judgment. A hearing to consider argument from counsel on the questions outlined in this Order is set for December 16, 2011, at 2:00 p.m., in Courtroom B155 in the Richard Sheppard Arnold United States Courthous e. The case is set for trial on January 16, 2012; pretrial disclosure sheets are due December 30, 2011; motions in limine are due December 30, 2011, with responses due January 6, 2012; and draft jury instructions are due January 11, 2012. Signed by Judge D. P. Marshall Jr. on 12/6/11. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION
SHERMAN T. COHEN
v.

PLAINTIFF
No. 2:10–cv–34–DPM

CITY OF AUGUSTA, ARKANSAS,
a public body corporate and politic;
THE CITY COUNCIL OF THE CITY
OF AUGUSTA, ARKANSAS, a public
body corporate; JIMMY RHODES, Mayor,
City of Augusta, Arkansas, individually
and in his official capacity; and
CHARLES ALLEN, Chief of Police, City
of Augusta Police Department, individually
and in his official capacity

DEFENDANTS

ORDER
This is a case for trial, not summary judgment.

Cohen and the

Defendants contest who fired him (Chief Allen or the City Council), the date
of termination (June 23rd versus July 7th), whether Cohen is entitled to due
process (a legal issue for the Court), and, if so, whether he got it. On the
record presented, the conflicts create genuine disputes of material fact that
preclude summary judgment on Count I, the procedural-due-process claim,
and Count III, the pendent Arkansas Civil Rights Act claim about due process.
Similarly, the parties’ argument over whether Chief Allen’s actions were

racially motivated, and Cohen’s proffered evidence that they were, create a
fact issue for the jury on Count II, the § 1981 claim. The Court therefore
denies the defendants’ motion for summary judgment as supplemented,
Document Nos. 27 & 45.
But the case needs trimming. To begin with, Cohen alleges violations
under the Fifth Amendment’s Due Process Clause. He makes no allegation,
however, that any federal actor violated his constitutional rights. Any claim
under the Fifth Amendment therefore fails. Warren v. Government National
Mortgage Ass’n., 611 F.2d 1229, 1232 (8th Cir. 1980). Cohen may proceed with
his due process claims only under the Fourteenth Amendment and the ACRA.
And the Court has questions about whether the case should be tried
against some of the parties.
•

Is Mayor Rhodes entitled to qualified immunity, considering there
appears to be no allegation he either terminated or discriminated
against Officer Cohen?

•

Should the City of Augusta remain as a party? The Court would
like to hear whether it may be immune from liability under Monell
v. New York City Dept. of Social Services, 436 U.S. 658, 690–92 (1978),
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or if this is a case where an “isolated act[]” of a government
official with “final policymaking authority” is enough to infer a
policy or custom according to City of St. Louis v. Praprotnik, 485
U.S. 112, 123 (1988).
The Court therefore sets a hearing to consider argument from counsel on these
questions on 16 December 2011 at 2:00 p.m., in Courtroom B155 in the Richard
Sheppard Arnold United States Courthouse.
The Court advises counsel that this case is now first-out for trial on 16
January 2012. The Court notes that it failed to issue an amended final
scheduling order with new pretrial deadlines. Apologies. Here are some due
dates:
•

Pretrial disclosure sheets due 30 December 2011.

•

Motions in limine due 30 December 2011, with responses due
6 January 2012; no replies.

•

Draft jury instructions due 11 January 2012.

The Court also notes that Defendants are amenable to a settlement conference,
Document No. 26, and Plaintiff seems willing to talk too, Document No. 25.

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Unless the Court hears differently before 9 December 2011, the Court will
therefore refer this matter for that conference.
So Ordered.

______________________________
D.P. Marshall Jr.
United States District Judge
6 December 2011

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