Bozeman v. Bobby Cummings et al

Filing 28

MEMORANDUM. Signed by Judge Gregory M. Sleet on 11/22/2016. (mdb)

IN THE UNITED ,STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

SGT. HAROLD BOZEMAN
Plaintiff,

BOBBY CUMMINGS, individually and in his
'official capacity as the Chief of Police of the City
of Wilmington and CITY OF WILMINGTON,
a municipal corporation,
Defendants. .

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Civil Action No. 16-391-GMS

MEMORANDUM
I.

INTRODUCTION
The plaintiff Harold Bozeman ("Bozeman") sued Chief of Police Bobby Cummings

("Chief Cummings") and the City of Wilmington ("City") on May 26, 2016. (D.1. 1.) The
Complaint raises three federal claims under 42 U.S.C. § 1983 concerning Bozeman's employment
with the Wilmington Police Department. (Id.) Specifically, Bozeman alleges two violations of
the First Amendment of the U.S. Constitution arising from Defendants actions in disciplining him,
transferring him, and denying him promotions in retaliation for exercising and attempting to
exercise his right to free speech and free association. (Id.) Bozeman also alleges that Defendants
violated his Fourteenth Amendment right to procedural due process by the manner in-which
Defendants charged and imposed discipline for his social media activity. (Id.)
On July 15, 2016, the Defendants moved to dismiss the Count III procedural due process
claim, arguing Bozeman has failed to state a claim under Federal Rule of Civil Procedure 12(b)(6). ·
(D.I. 10.) For the reasons stated below, the court will deny the Defendants' motion to dismiss.

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II.

.BACKGROUND
The court takes the following facts from Bozeman's Complaint. Plaintiff Bozeman has

continuously served as a police officer with the Wilmington Police Department ("WPD") since
September 1996. (D.I. 1iii!10-14.) In January 2013, Bozeman became a Sergeant. (Id. if 15.) In
October 2013, Bozeman was elected President of the Fraternal Order of Police ("FOP"). (Id. if16.)
The Mayor appointed Defendant Cummings Acting Chief of the WPD in January 2014.
(Id. if 17.) On April _15, 2014, while Cummings served in his acting role, the FOP issued and

announced a vote of no confidence against Cummings. (Id. if 20.) The no confidence vote
stemmed from the FOP membership's discussion about Cummings' proposed policies, his
qualifications for the positon of Chief, and the membership's impression of his tenure as Acting
Chief. (Id. at 19.) Subsequently, Cummings met with Bozeman and asked q1:1estions about the no
confidence vote and wanted to know how "they" could "fix this." (Id. if 22.)
On May 30, 2014, Cummings was named the new Chief of Police, and on June 16, 2014,
a complaint was filed with the Office of Professional Standards ("OPS") alleging that Bozeman
had violated the City social media policy. (Id. ifif 23-24.) On July 16, 2014, Bozeman was notified
of the social media complaint and interviewed by Sgt. Charles Emory, who was assigned to OPS.
The OPS alleged that Bozeman violated the City's social media policy by posting items on his
personal Facebook account that allegedly "could diminish the city of Wilmington and Wilmington
Department of Police standing in the community." (Id. iii! 24-25.) During this interview, Sgt.
Emory refused to provide the name of the complainant.
On September 30, 2014, the WPD held a complaint hearing board to address the social
media complaint. (Id. if 30.) The hearing panel consisted of Captains Sherri Tull, Matthew Kurten,
and Jam es Gestwicki. At the request of Bozeman, Inspector Elmer Harris replaced Captain Tull

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on the panel. Inspector Harris reports directly to Chief Cummings. (Id 'if 28-29.) Bozeman's
counsel objected to the refusal of OPS to identify the complainant. (Id 'if 30.) During the hearing,
Sgt. Emory disclosed the name of the complaining officer as being Chief Cummings. (Id) Chief
Cummings did not attend the hearing and was not available for cross-examination. (Id 'if 31.) The
Trial Board found Bozeman guilty of the charge and suspended him for eight hours without pay.
(Id)

WPD convened an appeal board on April 13, 2015, several months after Bozeman appealed
his suspension. (Id

'if 33.) The appeal board consisted oflnspector Smith (who reports directly to

Chief Cummings), the City's human resources director Charlotte Barnes, and FOP Lodge Trustee
Sgt. David Rosenblum. (Id) The appeal board upheld the suspension by a 2-1 vote. (Id)
Ultimately, Bozeman alleges Chief Cummings initiated disciplinary action against him without
providing the right to confront and cross-examine his accuser and convening an impartial and
disinterested trial and appeal boards. (Id 'if 84.)

III.

STANDARD OF REVIEW
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal where the

plaintiff"fail[s] to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In
considering a motion to dismiss, the court "accept[ s] all factual allegations as true, construe[s] the
complaint in the light most favorable to the plaintiff, and determine[s] whether, under any
reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). The issue for the court is "not whether the plaintiff

will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims."
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). As such, the touchstone of the pleading standard is

plausibility. Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012). Plaintiffs must provide sufficient

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factual allegations "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). "Determining whether a complaint states a plausible claim
for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

IV.

DISCUSSION

Sgt. Bozeman alleges that Chief Cummings and the City of Wilmington violated his
Fourteenth Amendment right to due process in connection with Cummings' decisions to discipline,
transfer, and deny him promotion. Bozeman contends that he had a protected property interest as
an employee of the City of Wilmington and therefore was entitled to procedural due process before
WPD could discipline him. Bozeman claims the Defendants denied due process by failing to
provide (1) the

righ~

to confront and cross-examine his accuser and (2) the right to impartial and

disinterested trial and appeal boards. (D.1. 1 if 84.)
The Fourteenth Amendment's due process clause prohibits States from "depriv[ing] any
person oflife, liberty, or property, without due process oflaw." U.S. Const. Amend. XIV,§ 1. To
sustain a procedural due process claim, a plaintiff must establish that (1) he has an interest derived
from the Fourteenth Amendment's

"life~

liberty or property" clause and (2) the procedures

available to him did not provide due process oflaw. Hill v. Borough ofKutztown, 455 F.3d 225,
233-34 (3d Cir. 2006). If a plaintiff identifies a valid property interest, the court must determine
what process was due under the circumstances. 1 Dee v. Borough ofDunmore, 549 F.3d 225, 229
(3d Cir. 2008). Lande v. City ofBethlehem, 2010 WL 5173154. Consistent with the due process
clause of the Fourteenth Amendment, "a deprivation of life, liberty, or property [must] "be

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The parties do not dispute plaintiff had a constitutionally protected right to continued employment as a
permanent employee of the Wilmington Police Department. Thus, the court's analysis focuses on whether the
process afforded to plaintiff was sufficient for Fourteenth Amendment purposes. See Hopkins v. Mayor & Council
of City of Wilmington, 600 F.Supp. 542, 546 (D. Del. 1984).

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preceded by notice and opportunity for hearing appropriate to the nature of the case."' Cleveland
Bd. ofEduc. v. Loudermill, 470 U.S. 532, 542 (1985) (quoting Mullane v. Cent. Hanover Bank &
Trust Co., 339 U.S. 306, 313 (1950)).

A. The Right to Confront and Cross Examine His Accuser
Defendants argue that the decision not to provide Bozeman the identity of the complainant
until the start of the hearing did not deprive him of procedural due process. (D.I. 10 at 5-6.)
Defendants assert that Bozeman was provided with adequate procedural due process: notice of the
charges against him, an explanation of the evidence, and a full hearing with an opportunity to
present his side of the story prior to the decision to suspend him. (D.I. 10. at 4.) The court agrees
with Defendants. In Lande, the Third Circuit dismissed a police officer's procedural due process
claim because he received a pre-suspension hearing, which included a meeting with two
supervisors where he was "provided an opportunity to present reasons, in person, why he should
not be disciplined." 457 Fed. Appx. At 192. The procedural due process requirements of notice
and a fair opportunity do not mandate the right to cross-examine his accuser. Therefore, the court
concludes that lack of cross-examination of Chief Cummings did not render the process
unconstitutional.

B. The Right to Impartial and Disinterested Trial and Appeal Boards
Defendants assert that Bozeman failed to allege any facts that demonstrate any of the
individuals who served on either the trial or appeal board were extensively involved or had a
personal interest in the matter at issue in the hearings to establish lack of impartiality. (D.I. 10 at
9.) Bozeman alleges that Chief Cummings maintained bias against him, filed disciplinary charges
against him as a means of retaliation, and then orchestrated both the investigation and hearings so
as to insure conviction. (D.I. 14 at 8.) Furthermore, Bozeman alleges that because the WPD

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officers who served on the boards (trial and appeal) reported to Chief Cummings, they were not
impartial. (D.I. 1 at iii! 27, 29, 31, 33.)
The court finds that"[ a]n impartial decision maker is an essential element of due process."
Bowens v. N.C. Dept. of Human Res., 710 F.2d 1015, 1020 (4th Cir. 1983) (citing Goldberg v.
Kelly, 397 U.S. 254, 271(1970)). Administrative decision makers "are entitled to a presumption
of honesty and integrity, and absent a showing of bias stemming from an extrajudicial source, they
are not constitutionally precluded from making the determination that they are directed to make
by their employer." Morris v. City of Danville, 744 F.2d 1041, 1044 (4th Cir. 1984) (citations
omitted). "This presumption can only be overcome by demonstrations of 'extrajudicial' bias
stemming from other influences than the investigative involvement." Boston v. Webb, 783 F.2d
1163, 1166 (4th Cir. 1986) (citing Withrow v. Larkin, 421 U.S. 35, 55 (1975); Morris, 744 F.2dat
1044).
Accepting the allegations in the Complaint as true and giving Bozeman the benefit of all
reasonable factual inferences, Bozeman has sufficiently alleged that Chief Cummings was biased
in bringing disciplinary charges against him and tainted the independence of the boards. The fact
that officers who sat on the Complaint Hearing Board and Appeal Board report to Chief Cummings
suggest that Bozeman has a plausible claim to relief. Indeed, the timing of the complaint against
Bozeman coupled with Chief Cummings' relationship to some of the decision makers further
supports the plausibility of the claim. Thus, Bozeman has rebutted the presumption that the trial
and appeal boards acted impartially. Because Bozeman has stated a claim for deprivation of a
property interest in violation of due process, the Defendants' Motion is denied with respect to
Count III of the Complaint.

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V.

CONCLUSION
For the foregoing reasons, the court will deny the Defendants' motion to dismiss Count III

against Chief Cummings and the City of Wilmington. (D.I. 10.)

Dated: November _l:_"t-;-2016

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