Dingle v. City of Coleman et al

Filing 25

ORDER granting in part and denying in part 3 Motion to dismiss. The following claims from the Plaintiffs Complaint (Doc. 1) are DISMISSED WITH PREJUDICE: Counts I (Equal Protection), II (Substantive Due Process), III (Procedural Due Process), and V (Misuse of Power). Count IV (Wrongful Discharge & Suspension) is DISMISSED WITHOUT PREJUDICE. Within fourteen (14) days from the date of this Order, the Plaintiff may file an amended complaint properly asserting a claim for First Amendment Retali ation. The Plaintiff may not re-assert any other dismissed claims or assert any new legal theories or causes of action. Within fourteen (14) days from the date of the filing of the amended complaint, the Defendants shall file their answer or other responsive pleading. Failure to file an amended complaint within this time period will result in dismissal of this case in its entirety without further notice. Signed by Senior Judge Wm. Terrell Hodges on 10/28/2010. (LRH)

Dingle v. City of Coleman et al

Doc. 25

UNITED STATES DISTRICT COURT M ID D L E DISTRICT OF FLORIDA O C A L A DIVISION J A M E S PATRICK DINGLE, P la in tiff, -vs C IT Y OF COLEMAN, a Florida municipal c o rp o ra tio n , FRANK MOORE, in his individual capacity, W ARREN A L E X A N D E R , in his individual capacity, L O N N I E G. EVANS, in his individual c a p a c ity , BILLIE MARIE W IN K L IE S , in h e r individual capacity, CLEVELAND W IL L IA M S , in his individual capacity, V IR G IE M. EVERITT, in her individual c a p a c ity , and MARY A. BIGHAM, in her in d ivid u a l capacity, D e fe n d a n ts . _____________________________________/ ORDER T h e Plaintiff, a former police officer for the City of Coleman, has filed a five (5) c o u n t Complaint under 42 U.S.C. § 1983 against the City, the former Chief of Police, th e former Mayor of the City of Coleman, and five city council members (Doc. 1). The P la in tiff alleges that the Defendants unlawfully suspended and ultimately terminated h is employment in retaliation for his participation in a Florida Department of Law E n fo rc e m e n t ("FDLE") investigation into the activities of the former Chief of Police. The P la in tiff further alleges that he was denied due process ­ specifically prior notice and a n opportunity to be heard ­ before his suspension and termination, and that the C a s e No. 5:10-cv-53-Oc-10GRJ

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Defendants' actions violated the Plaintiff's equal protection and due process rights, as w e ll as numerous provisions of the Florida Policemen's Bill of Rights, Fla. Stat. § § 1 1 2 .5 3 1 -1 1 2 .5 3 2 .1 T h e Defendants have moved to dismiss all claims against them on the grounds th a t the Plaintiff has failed to state claims for relief, and that the individual Defendants a re entitled to qualified immunity (Doc. 3). The Plaintiff has filed a response in o p p o s itio n (Doc. 7). F o r the reasons discussed below, the Court finds that the Defendants' motion is d u e to be granted in part and denied in part. S ta n d a r d of Review In passing on a motion to dismiss under Rule 12(b)(6), the Court is mindful that "[d ]is m is s a l of a claim on the basis of barebones pleadings is a precarious disposition w ith a high mortality rate." Int'l Erectors, Inc. v. W ilh o it Steel Erectors Rental Serv., 400 F .2 d 465, 471 (5th Cir. 1968). For the purposes of a motion to dismiss, the Court must vie w the allegations of the complaint in the light most favorable to plaintiff, consider the a lle g a tio n s of the complaint as true, and accept all reasonable inferences that might be d ra w n from such allegations. Jackson v. Okaloosa County, Fla., 21 F.3d 1532, 1534 (1 1 th Cir.1994); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Furthermore, the Court

Although the Plaintiff relies heavily throughout his Complaint and response in opposition on the Policeman's Bill of Rights, he has not asserted any causes of action under Florida law, and the Court will not read any such claims into this case.
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must limit its consideration to the complaint and written instruments attached as e xh ib its . Fed R. Civ. P. 10(c); GSW , Inc. v. Long County, Ga., 999 F.2d 1508, 1510 (1 1 th Cir.1993). Once a claim has been stated adequately, it may be supported by showing any s e t of facts consistent with the allegations of the complaint. Bell Atlantic Corp. v. T w o m b ly , 550 U.S. 544 (2007). However, "while notice pleading may not require that th e pleader allege a `specific fact' to cover each element of a claim, it is still necessary th a t a complaint contain either direct or inferential allegations respecting all the material e le m e n ts necessary to sustain a recovery under some viable legal theory." Roe v. A w a re W o m a n Center for Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001) (quotations o m itte d ). "A pleading that offers `labels and conclusions' or "a formulaic recitation of t h e elements of a cause of action will not do.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S .C t. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 555). D is c u s s io n I. C o u n t I - Equal Protection Claim T h e Defendants argue that Count I, entitled "1983 Violation - Equal Protection" fa ils to state a claim upon which relief may be granted because the Plaintiff has failed to identify the protected class to which he belongs. Instead, the Defendants argue that th e Plaintiff is attempting to assert a "class of one" equal protection claim, which is not c o g n iz a b le in the context of public employment.

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The Court agrees with the Defendants. The Supreme Court made clear in Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591 (2008) that the "class-of-one th e o ry of equal protection has no application in the public employment context." 553 U .S . at 607. See also Douglas Asphalt Co. v. Qore, Inc., 541 F.3d 1269, 1273-74 (11th C ir . 2008). In Count I, the Plaintiff has not alleged membership in any specific

p ro te c te d class or specified any similarly situated comparators ­ rather he merely a lle g e s that he was irrationally and selectively discriminated and retaliated against (D o c . 1, ¶ 67). The Plaintiff also has not made any argument in his opposition that he w a s discriminated against due to membership in any protected class. Accordingly, the Court finds that the Plaintiff has not asserted a claim for equal p ro te c tio n under § 1983, and that any amendment to assert such a claim would be fu tile pursuant to Engquist. Count I shall therefore be dismissed with prejudice.2 II. C o u n t II- Substantive Due Process Claim T h e Defendants also seek dismissal of the Plaintiff's substantive due process c la im , arguing that the right to continued employment is not a protected property in te re s t or liberty interest. The Plaintiff, in response, asserts that he has a state created The cases cited by the Plaintiff are unavailing. The three decisions the Plaintiff relies upon most heavily do not involve a current or former public employee asserting a claim of equal protection. See Snowden v. Hughes, 321 U.S. 1 (1944) (private citizen running for public office sued when he was excluded from the Republican primary ticket); Ortega Cabrera v. Municipality of Bayamon, 562 F.2d 91 (1st Cir. 1977) (private landowners sued municipality and its officers); McGuire v. Sadler, 337 F.2d 902 (5th Cir. 1964) (private citizen landowners sued Land Commissioner of Texas and others). The two decisions cite by the Plaintiff which involve a public employee predate and are trumped by Engquist. See Schultea v. City of Patton Village, 2006 WL 3063457 (S.D. Tex. Oct. 27, 2006); and Toomer v. Garrett, 574 S.E. 2d 76 (N. C. App. 2002).
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property and liberty interest in his continued employment, as well as state created rig h ts under Florida's Policemen's Bill of Rights, and that the Fourteenth Amendment's s u b s ta n tive due process component protects such state interests and rights.3 "T h e substantive component of the Due Process Clause protects those rights th a t are `fundamental,' that is, rights that are `implicit in the concept of ordered liberty.'" M c K in n e y v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994) (en banc) (quoting Palko v. C o n n e c tic u t, 302 U.S. 319 325 (1937)). Substantive due process rights are created by th e Constitution, not state law. Id. Because the Plaintiff's alleged property interests a re solely creations of state law, his claim for substantive due process is squarely fo re c lo s e d by the law of this Circuit: T o d a y, however, we hold that, in non-legislative cases, only procedural d u e process claims are available to pretextually terminated employees. Thus, we conclude that our prior decisions, which granted pretextually te rm in a te d employees section 1983 causes of action premised on s u b s t a n tive due process violations, are contrary to Supreme Court ju ris p ru d e n c e ; to the extent they are contrary to the holding of this opinion, th e y are overruled. M c K in n e y, 20 F.3d at 1560. See also Hinson v. Clinch County, Georgia Bd. of Educ., 2 3 1 F.3d 821, 832 (11th Cir. 2000) (citing McKinney and noting that there is no viable § 1983 substantive due process claim for mere arbitrary deprivation of state law e m p lo y m e n t rights); Bussinger v. City of New Smyrna Beach, Fla., 50 F.3d 922, 925

To the extent the Plaintiff is arguing in his response that he has a substantive due process claim for the alleged violation of his First Amendment right to free speech, that claim will be subsumed by his First Amendment retaliation claim, which the Plaintiff will be given leave to properly assert. See Graham v. Connor, 490 U.S. 386, 395 (1989).
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(11th Cir. 1995) (same); Hunt v. City of Mulberry, 173 F. Supp. 2d 1288, 1293-94 (M.D. F la . 2001) (same); City of Lauderhill v. Rhames, 864 So. 2d 432, 440-41 (Fla. 4th DCA 2 0 0 3 ) (police officers' loss of position during department reorganization did not im p lic a te a fundamental right and therefore did not violate substantive due process).4 A c c o rd in g ly, Count II of the Complaint will be dismissed for failure to state a c la im . III. C o u n t III - Procedural Due Process T h e Plaintiff's procedural due process claim is premised on the allegation that h e was not given a meaningful opportunity to be fairly heard prior to his suspension and te rm in a tio n , in violation of both the Fourteenth Amendment and Fla. Stat. § 112.532 (D o c . 1, ¶ 74). The Defendants seek dismissal of this claim both because the Plaintiff h a s not alleged a protected property or liberty interest, and because adequate p ro c e d u re s for review have always been available to the Plaintiff. A § 1983 claim alleging the denial of procedural due process requires proof of th re e elements: "(1) a deprivation of a constitutionally-protected liberty interest; (2) s ta te action; and (3) constitutionally-inadequate process." Arrington v. Helms, 438 F.3d 1 3 3 6 , 1347 (11th Cir. 2006). Unless state law provides a plaintiff with a legitimate e xp e c ta tio n of continued employment which rises to the level of a property right, he has

The decisions cited by the Plaintiff in support of his substantive due process claim are not persuasive as they are from other circuits, and all predate McKinney. See Doc. 7, p. 14, n. 41.
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no procedural due process claim under the United States Constitution. Lassiter v. A la b a m a A & M Univ., Bd. of Trustees, 28 F.3d 1146, 1148 (11th Cir. 1994) (en banc). A public employee has a property interest in employment if "existing rules or u n d e rs ta n d in g s that stem from an independent source such as state law create a le g itim a te claim of entitlement." Board of Regents of State Colleges v. Roth, 408 U.S. 5 6 4 , 577-78 (1972). See also Ross v. Clayton County, Ga., 173 F.3d 1305, 1307 (1 1 th Cir. 1999). This determination requires examination of relevant state law. Bishop v. W o o d , 426 U.S. 341, 344-45 (1976). Generally, a public employee has a p ro p e rty interest in continued employment if state law or local ordinance in any way "lim its the power of the appointing body to dismiss an employee." Barnett v. Housing A u th . of City of Atlanta, 707 F.2d 1571, 1577 (11th Cir.1983), overruled on other g ro u n d s by McKinney, 20 F.3d at 1558. In contrast to his substantive due process claim, the Plaintiff has sufficiently a lle g e d a state property interest sufficient for a procedural due process claim. Although th e Plaintiff does not explain this fully in his Complaint, he does state in his response in opposition that Fla. Stat. § 112.532 arguably creates a protectable property interest in his employment. This statute sets forth a detailed series of procedures for

in ve s tig a tin g and/or disciplining law enforcement and corrections officers, up to and in c lu d in g termination. In other words, Fla. Stat. § 112.532 "limits the power of the a p p o in tin g body to dismiss an employee." Accordingly, the Court finds that, at least at th is stage in the litigation, the Plaintiff has established a property interest in his
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employment, for purposes of a procedural due process claim. See also Emerson v. B a ile y, 2009 W L 1930188 at * 7-8 (M.D. Fla. June 30, 2009); Bailey v. Town of Lady L a k e , Fla., 2007 W L 677995 at * 6-7 (M.D. Fla. Mar. 5, 2007); Park v. City of W . M e lb o u rn e , 927 So. 2d 5, 8 (Fla. 5th DCA 2006); Grice v. City of Kissimmee, 697 So. 2 d 186, 190 (Fla. 5th DCA 1997) (all noting that the Policemen's Bill of Rights has been c o n s tru e d as conferring a property interest for procedural due process purposes in c o n tin u in g employment for permanent non-probationary officers). W h ile the Plaintiff has sufficiently alleged a property interest, he must also allege th a t insufficient process was provided. For, it is "only when the state refuses to provide a process sufficient to remedy the procedural deprivation does a constitutional violation a c tio n a b le under section 1983 arise." McKinney, 20 F.3d at 1557. In other words, "p ro c e d u ra l due process violations do not even exist unless no adequate state re m e d ie s are available." Cotton v. Jackson, 216 F.3d 13218, 1331, n. 2 (11th Cir. 2 0 0 0 ). "[T]he state must have the opportunity to remedy the procedural failings of its s u b d iv is io n s and agencies in the appropriate fora-agencies, review boards, and state c o u rts before being subjected to a claim alleging a procedural due process violation." Id. at 1331. Accordingly, if adequate state remedies were available, but a plaintiff did n o t avail himself of them, that plaintiff "cannot rely on that failure to claim that the state d e p rive d him of procedural due process." Id. To support the element of constitutionally-inadequate process, a plaintiff must th e re fo re allege that the state failed or refused to make available a means to remedy
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the deprivation or that those remedies were inadequate. See Price v. City of Ormond B e a c h , Fla., 2006 W L 1382096 at *5 (M.D. Fla. May 19, 2006). The Plaintiff has not m a d e any such allegations in his Complaint. Instead, he simply alleges that he was d e n ie d a meaningful opportunity to be heard prior to his suspension and termination. He makes no mention of any available state remedies for the procedural deprivations h e claims to have suffered, or that such remedies are inadequate. The Florida Policemen's Bill of Rights itself provides a remedial process by which th e Plaintiff could seek relief against any violations of his due process rights. See Fla. S ta . §§ 112.532, 112.534. Florida also recognizes a private cause of action for

p e c u n ia ry damages and injunctive relief for violations of the Policemen's Bill of Rights. See Fla. Stat. §112.532(3); Bailey v. Bd. of County Comm'rs, 659 So.2d 295, 300-01 (F la . 1st DCA 1994). Moreover, Florida law provides, through certiorari review by F lo rid a courts, an adequate means for review of a public employee's termination of e m p lo y m e n t. McKinney, 20 F.3d at 1563-64. Thus, a state remedy was available for th e Plaintiff's claimed procedural deprivations. See Horton v. Bd. of County Comm'rs o f Flagler County, 202 F.3d 1297, 1300 (11th Cir.2000). T h e Plaintiff argues, without any legal authority in support, that the state court re m e d ie s available will not fully compensate him because he seeks a declaration that h is constitutional rights were violated, as well as injunctive relief. However, the

P o lic e m e n 's Bill of Rights clearly provides for injunctive relief, and the Court is unaware o f any reason why a state court could not address the Plaintiff's constitutional claims,
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or award any other relief requested by the Plaintiff. See McKinney, 20 F.3d at 1565 ("S in c e the Florida courts possess the power to remedy any deficiency in the process b y which McKinney was terminated, McKinney cannot claim that he was deprived of p ro c e d u ra l due process."). Moreover, to be considered "adequate," the state p ro c e d u re s do not have to provide all of the relief available to the plaintiff under § 1983. Rather, "the state procedure must be able to correct whatever deficiencies exist and to provide plaintiff with whatever process is due." Cotton, 216 F.3d at 1331.5 T h e inability of the Plaintiff to allege that the State of Florida has refused to make a va ila b le a means through which to remedy his alleged deprivation is fatal to his p ro c e d u ra l due process claim. Count III will therefore be dismissed with prejudice. IV . C o u n t IV - W ro n g fu l Discharge and Suspension T h e Defendants next contend that Count IV, which is entitled "1983 Violation W ro n g fu l Discharge & Suspension" should be dismissed because no such claim exists u n d e r § 1983 or the federal constitution. Count IV incorporates all 65 paragraphs of th e Complaint's factual allegations, and states that the Plaintiff was dismissed and s u s p e n d e d in retaliation for his "exercise of statutorily constitutionally protected rights." (Doc. 1, ¶¶ 76-77). Count IV further alleges that the Plaintiff's dismissal "offends the p u b lic policy of the State of Florida and Florida law, including Florida Statute 112.532,"

The Court is unpersuaded by the Plaintiff's unsupported statement in his response that his case would be "prejudiced due to the politics of a small town." (Doc. 7, p. 18).
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and that his dismissal was in retaliation for the Plaintiff's participation in the FDLE in ve s tig a tio n of Chief Frank Moore. (Id., ¶¶ 77-78). To the extent Count IV alleges a violation of the Plaintiff's constitutionally p ro te c te d rights, the Defendants argue that Count IV is duplicative of Counts I-III, which a lle g e violations of the Plaintiff's equal protection, procedural due process, and s u b s ta n tive due process rights. To the extent Count IV purports to assert any other c o n s titu tio n a l violations, the Defendants argue that such constitutional rights are n o w h e re identified or alleged in the Complaint, or in Count IV. Finally, the Defendants a rg u e that to the extent Count IV is based on a violation of Florida constitutional or s ta tu to ry rights, such a claim cannot be brought under § 1983. In response, the Plaintiff argues that Count IV is actually a claim for violation of th e Plaintiff's First Amendment rights stemming from his retaliatory dismissal based on h is participation in the FDLE investigation (Doc. 7, p. 3). Citing Morgan v. Ford, 6 F.3d 7 5 0 (11th Cir. 1993), the Plaintiff contends that a cause of action may lie under § 1983 b a s e d on a wrongful termination in retaliation for protected speech. W h ile the Plaintiff is correct in his interpretation of the law, his Complaint does n o t allege such a claim. To state a prima facie case of First Amendment retaliation, a p la in tiff must show that: (1) he spoke "as a citizen" on speech that can fairly be c a te g o riz e d as a matter of public concern; and (2) his First Amendment interests as a c itiz e n outweigh the interests of the State as an employer in promoting efficient public s e rvic e s . Pickering v. Board of Educ., 391 U.S. 563, 568 (1968); D'Angelo v. School
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Bd. of Polk County, Fla., 497 F.3d 1203, 1209 (11th Cir 2007); Cook v. Gwinnett C o u n ty School Dist., 414 F.3d 1313, 1318 (11th Cir. 2005). If the plaintiff prevails on th e s e two elements, he must then establish that the employee's speech played a s u b s ta n tia l motivating factor in the government's decision to discharge the plaintiff. Mt. H e a lth y City School Dist. Board of Educ. v. Doyle, 429 U.S. 274 (1977). Nowhere does th e Plaintiff mention the First Amendment, state that he engaged in protected speech o n a matter of public concern, or otherwise assert any of the elements of a claim for F irs t Amendment retaliation. Count IV will be dismissed with leave to amend to properly assert such a claim. V. C o u n t V - Misuse of Power T h e Defendants next seek dismissal of Count V, which is entitled "1983 Violation - Misuse of Power," on the grounds that no such claim exists, and that the Plaintiff has fa ile d to identify the constitutional rights he alleges have been violated. Citing to Home T e l. & Tel. Co. v. Los Angeles, 227 U.S. 278 (1913), the Plaintiff argues that a claim fo r misuse of power exists under § 1983 when such misuse occurs "under color of state la w ." A "[m]isuse of power, possessed by virtue of state law and made possible only b e c a u s e the wrongdoer is clothed with the authority of state law, is action taken `under c o lo r of state law.'" Nat'l Collegiate Ath. Ass'n. v. Tarkanian, 488 U.S. 179, 191 (1988) (c ita tio n s omitted). However, action taken "under color of state law" is only one-half o f a § 1983 claim. As the Plaintiff admits, to state a § 1983 claim he must also allege
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that he was deprived of a federal or constitutional right. See Gomez v. Toledo, 446 U .S . 635, 640 (U.S. 1980). Thus, merely alleging that an abuse of power took place is not enough to properly state a claim under § 1983. There must also be an

a c c o m p a n yin g wrongful action or constitutional violation. See also Home Tel. & Tel., 2 2 7 U.S. at 287 ("the theory of [the Fourteenth Amendment] is that where an officer or o th e r representative of a State in the exercise of the authority with which he is clothed m is u s e s the power possessed to do a wrong forbidden by the Amendment, . . . the F e d e ra l judicial power is competent to afford redress for the wrong by dealing with the o ffic e r and the result of his exertion of power.") (emphasis added). C o u n t V merely states "[t]hrough their arbitrary, capricious, and retaliatory p ra c tic e s , Defendants' conduct contravened a misuse of power taken under color of s ta te and/or local law as guaranteed by the Fourteenth Amendment to the United S ta te s Constitution and the due course of law protections afforded by the Florida C o n s titu tio n and Florida law including Florida Statute 112.532." (Doc. 1, ¶ 81). This is n o t sufficient to assert a claim under § 1983. Rather, it is clear that this claim is merely re p e titio u s of the Plaintiff's other claims for violations of his equal protection, and s u b s ta n tiv e and procedural due process rights and is based on the identical factual a lle g a tio n s . Accordingly, the Court will dismiss Count V with prejudice.6

Because the Court is granting the Plaintiff leave to amend his claim for First Amendment retaliation, and dismissing all other claims with prejudice, the Court need not address the Defendants' qualified immunity argument at this time.
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Conclusion A c c o rd in g ly , upon due consideration, it is hereby ORDERED that the D e fe n d a n ts ' Motion to Dismiss Complaint (Doc. 3) is GRANTED IN PART AND D E N I E D IN PART. The following claims from the Plaintiff's Complaint (Doc. 1) are D IS M IS S E D W IT H PREJUDICE: Counts I (Equal Protection), II (Substantive Due P ro c e s s ), III (Procedural Due Process), and V (Misuse of Power). Count IV (W ro n g fu l D is c h a rg e & Suspension) is DISMISSED WITHOUT PREJUDICE. W ith in fourteen (14) d a ys from the date of this Order, the Plaintiff may file an amended complaint properly a s s e rtin g a claim for First Amendment Retaliation. The Plaintiff may not re-assert any o th e r dismissed claims or assert any new legal theories or causes of action. W ith in fo u rte e n (14) days from the date of the filing of the amended complaint, the Defendants s h a ll file their answer or other responsive pleading. F a ilu re to file an amended complaint within this time period will result in dismissal o f this case in its entirety without further notice. IT IS SO ORDERED. D O N E and ORDERED at Ocala, Florida this 28th day of October, 2010.

C o p ie s to:

C o u n s e l of Record M a u rya McSheehy
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