Bradford v. City of Roswell et al
Filing
71
ORDER AND OPINION granting 52 Defendants' Motion for Summary Judgment. Signed by Judge Julie E. Carnes on 7/30/14. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MAURICE J. BRADFORD,
Plaintiff,
CIVIL ACTION NO.
v.
1:11-cv-0787-JEC
CITY OF ROSWELL, a Municipal
Corporation, EDWIN WILLIAMS,
KEN MCRAE, JEREMIAH J.
STEPHENS, KEVIN R. SMITH, KAY
LOVE,
Defendants.
ORDER & OPINION
This case is before the Court on defendants’ Motion for Summary
Judgment [52].
The Court has reviewed the record and the arguments
of the parties and, for the reasons set out below, concludes that
defendants’ motion [52] should be GRANTED.
BACKGROUND
This is a § 1983 case arising out of plaintiff’s employment with
defendant City of Roswell (the “City”).
a police officer in February, 2006.
The City hired plaintiff as
(Compl. [1] at ¶ 11.)
Upon
plaintiff’s completion of training and a probationary period, the
City assigned him as a patrol officer.
(Id. at ¶ 12.)
At all
relevant times during plaintiff’s employment, defendants McRae,
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Stephens, and Smith were fellow City police officers and defendant
Williams was the City’s Chief of Police.
(Id. at ¶¶ 6-9.)
Defendant
Love was the City’s Human Resources Department Head and subsequently
the City Manager.
(Id. at ¶ 10.)
On August 13, 2010, plaintiff was driving his City police
vehicle when three of his tires simultaneously ruptured.
Statement of Material Facts (“DSMF”) [52] at ¶ 1.)
(Defs.’
Plaintiff claims
that, at the time of the incident, he heard a noise that sounded like
a shotgun and then his vehicle began to jerk back and forth.
¶¶ 2-3.)
(Id. at
Plaintiff says that he drove 25-50 yards, and then stopped
and exited the vehicle.
(Id. at ¶ 4.)
He called his supervisor, who
instructed him to have the vehicle towed to Public Works.
(Id.)
Defendant Stephens met plaintiff at the scene and conducted an
investigation into the incident.
(Id. at ¶ 9.)
Pursuant to the
investigation, Stephens inspected plaintiff’s vehicle and found that
the tires showed no evidence of puncture by a foreign object.
[52] at ¶ 13.)
along
with
(DSMF
Noting that there was concrete dust on the tire rims,
mud
and
scrapes
under
the
front
bumper,
Stephens
determined that the damage to the vehicle suggested a collision with
“a fixed object, such as a concrete curb.”
(Id. at ¶ 14.)
However,
in his conversation with Stephens, plaintiff denied striking anything
and said that he was simply driving along the road when he “heard a
loud bang” and “noticed that three tires were flat on his vehicle.”
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(Stephens Report [52] at Ex. A, p. 14.)
Plaintiff initially refused to provide a written statement
describing his account of the incident.
(DSMF [52] at ¶ 10.)
He
eventually produced a statement, after receiving direct orders to do
so
from
his
sergeant
Scott
Waters.
(Id.
at
¶
12.)
In
his
statement, plaintiff again indicated that he was simply driving along
the road when he heard an “extremely loud bang . . . like a shotgun”
and then noticed when he was able to exit the vehicle that three of
his tires were flat.
(Pl.’s Statement [52] at Ex. A, p. 18.)
Following his investigation, defendant Stephens prepared two
reports.
(DSMF [52] at ¶¶ 15-19.)
In his initial report, Stephens
indicated that he could not “locate any roadway or physical evidence
[as] to how the event occurred or determine the location of the
event.”
(Id. at ¶ 15.)
In his second report, Stephens concluded
that the damage to plaintiff’s vehicle was consistent with striking
a fixed object such as a curb at high speed, but that the exact
location of the crash could not be determined because plaintiff had
“refused to cooperate with the investigation.”
(Id. at ¶¶ 16-17.)
Thereafter, defendant Williams instigated an Internal Affairs
(“IA”) investigation into the incident.
(Id. at ¶ 27.)
The IA
investigator reviewed the reports and other available evidence and
also interviewed David Brady, the manager of a Roswell tire store.
(Id. at ¶ 29.) After looking at several photos, Brady concluded that
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the vehicle “had either hit a median or curb and that the vehicle
probably left the roadway.”
(DSMF [52] at ¶ 30.)
According to
Brady, a vehicle would “absolutely not” suffer the type of damage
that was apparent in the photos without striking something.
(Id. at
¶ 31.)
The IA investigator ultimately found sufficient evidence to
prove
that
plaintiff
prohibiting:
misleading
had
violated
City
employment
policies
(1) lying during an investigation, (2) giving false or
information,
investigation.
and
(3)
failing
(Id. at ¶¶ 28, 32.)
to
cooperate
with
an
Based on the IA findings,
defendant Smith terminated plaintiff’s employment on September 30,
2010.
(Id. at ¶ 33.)
Plaintiff was notified that he had a right to
appeal the termination decision and to a hearing before Director
Love.
(Id. at ¶ 34.)
Plaintiff met with Love on October 12, 2010 to contest the
termination. (DSMF [52] at ¶ 36.) Although plaintiff complains that
he was not assisted by counsel or able to present evidence, he
concedes that he had an opportunity during the meeting to explain his
side of the story.
(Id. at ¶ 37.)
Plaintiff testified during his
deposition in this litigation that he told Love the truth, as he
understood it.
(Id. at ¶ 38.)
Love concluded that the charges
against plaintiff were sustained by “the visible and documented
degree
of
damage”
to
plaintiff’s
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vehicle
“contrasted
by
[his]
repeated statements . . . that [he] d[id] not know what happened or
how it happened.”
(Id. at ¶ 39.)
decision
City’s
by
the
rejected the appeal.
Plaintiff sought review of Love’s
Personnel
Committee,
but
the
Committee
(Id. at ¶¶ 40-41.)
Plaintiff subsequently filed this action asserting federal
constitutional claims under § 1983 and state claims for wrongful
termination and breach of contract.
(Compl. [1] at ¶¶ 72-93.)
Defendants moved for summary judgment, and the Court granted the
motion as unopposed when plaintiff failed to respond.
(Order [57].)
Upon plaintiff’s motion for relief and showing of excusable neglect,
the Court set aside its summary judgment order and reopened the case.
(Order [63].)
Defendant’s motion for summary judgment was deemed
refiled on the date of the Court’s order reopening the case, and is
now before the Court for a decision on the merits.
DISCUSSION
I.
SUMMARY JUDGMENT STANDARD
Summary
judgment
is
appropriate
when
the
“pleadings,
the
discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the
movant is entitled to a judgment as a matter of law."
56(c).
A fact’s materiality is determined by the controlling
substantive law.
(1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
An issue is genuine when the evidence is such that a
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FED. R. CIV. P.
reasonable jury could return a verdict for the nonmovant.
Id. at
249-50.
Summary judgment is not properly viewed as a device that the
trial court may, in its discretion, implement in lieu of a trial on
the merits. Instead, Rule 56 of the Federal Rules of Civil Procedure
mandates the entry of summary judgment against a party who fails to
make a showing sufficient to establish the existence of every element
essential to that party’s case on which that party will bear the
burden of proof at trial.
322 (1986).
Celotex Corp. v. Catrett, 477 U.S. 317,
In such a situation, there can be “‘no genuine issue as
to any material fact,’” as “a complete failure of proof concerning an
essential element of the non-moving party’s case necessarily renders
all other facts immaterial.”
Id. at 322-23 (quoting FED. R. CIV. P.
56(c)).
The movant bears the initial responsibility of asserting the
basis for his motion.
Id. at 323.
However, the movant is not
required to negate his opponent’s claim.
The movant may discharge
his burden by “‘showing’--that is, pointing out to the district
court--that there is an absence of evidence to support the non-moving
party’s case.”
Id. at 325.
After the movant has carried his burden,
the non-moving party is required to “go beyond the pleadings” and
present competent evidence designating “‘specific facts showing that
there is a genuine issue for trial.’”
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Id. at 324.
In ruling on a motion for summary judgment, the Court must view
the evidence and factual inferences in a light most favorable to the
non-moving party.
(11th Cir. 1988).
Samples v. City of Atlanta, 846 F.2d 1328, 1330
However, “the mere existence of some alleged
factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment.”
Anderson, 477 U.S.
at 247-48 (1986). The requirement is that there be no “genuine issue
of material fact.”
II.
Id.
PLAINTIFF’S FEDERAL CLAIMS
To prevail on his federal claims under § 1983, plaintiff must
show that he:
(1) was deprived of a constitutional right, (2) under
color of state law.
2013).
Myers v. Bowman, 713 F.3d 1319, 1329 (11th Cir.
There is no respondeat superior liability under § 1983.
Craig v. Floyd Cnty., Ga., 643 F.3d 1306, 1310 (11th Cir. 2011)
(citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)).
Thus, plaintiff must demonstrate that the constitutional violation
was the result of a governmental policy or custom to hold the City
liable.
Id.
In addition, plaintiff must overcome the qualified
immunity defense to impose liability on the individual defendants.
Castle v. Appalachian Tech. Coll., 631 F.3d 1194, 1197 (11th Cir.
2011)(citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
discussed
below,
plaintiff
has
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failed
to
meet
any
of
As
these
requirements.
A.
There is no evidence to suggest a constitutional violation.
1.
Equal Protection
Plaintiff vaguely asserts that his termination violated the
Equal Protection Clause.1
(Compl.
[1]
at
¶¶
76,
83
and
89.)
Plaintiff does not allege that defendants treated him differently in
any aspect of his employment or termination on the basis of his
membership in a particular class or group.
The Court thus assumes
that he is proceeding on a “class of one” theory.
See Grider v. City
of Auburn, Ala., 618 F.3d 1240, 1263-64 (11th Cir. 2010).
It is
well-settled that the “class of one” theory does not apply in the
public employment context.
See Engquist v. Oregon Dep’t of Ag., 553
U.S. 591, 594 (2008)(“a ‘class-of-one’ theory of equal protection has
no place in the public employment context”) and Alford v. Consol.
Gov’t of Columbus, 438 Fed. App’x 837, 840 (11th Cir. 2011)(“Engquist
holds that class-of-one equal protection claims are categorically
prohibited in the public employment context”).
Assuming that a “class-of-one” theory could have any relevance
to an employment case, it clearly does not apply here.
To prevail
under the “class-of-one” theory, plaintiff must show that he was
1
In the complaint, plaintiff claims that he has been deprived
of his “IV Amend.” right to equal protection. (Compl. [1] at ¶ 89.)
The Court assumes this was a citation error, as none of plaintiff’s
factual allegations implicate the Fourth Amendment.
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“intentionally treated differently from others who were ‘similarly
situated’ and that there is no rational basis for the difference in
treatment.”
Alford, 438 Fed. App’x at 840 (quoting Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000)).
Plaintiff does not
make any attempt to comply with this requirement.
and
in
his
brief,
plaintiff
surrounding his own termination.
focuses
entirely
In his complaint
on
the
events
The facts recited in these filings
certainly reflect plaintiff’s belief that defendants treated him
unfairly.
However, plaintiff does not identify even one “similarly
situated” comparator or explain how he was “treated differently” from
that individual.
As these essential elements are lacking, no
rational jury could find that plaintiff’s termination violated his
equal protection rights.
2.
Id.
First Amendment
Plaintiff’s First Amendment claim is likewise invalid on its
face.
In support of this claim, plaintiff alleges that defendant
Williams orchestrated his termination because Williams mistakenly
believed that plaintiff had leaked an unflattering report about the
police department to a local newspaper. (Compl. [1] at ¶¶ 17-18, 3032.)
Plaintiff concedes, indeed he insists, that he did not provide
any information to the newspaper.
(DSMF [52] at ¶ 44.)
According to
plaintiff, he was terminated in retaliation for his perceived speech
to the newspaper rather than his actual speech.
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(Pl.’s Resp. Br.
[61] at 17-18.)
Plaintiff does not cite any legal authority to support his novel
First Amendment theory, and the courts that have considered the
theory have unanimously rejected it.
See Ambrose v. Township of
Robinson, 303 F.3d 488, 495 (3rd Cir. 2002)(“perceived support” or
speech cannot form the basis of a First Amendment claim) and Jones v.
Collins, 132 F.3d 1048, 1054 (5th Cir. 1998)(a “free speech claim
depends on speech”).
As these courts have recognized, a general
threshold requirement for any First Amendment claim is protected
speech.
Battle v. Bd. of Regents for Ga., 468 F.3d 755, 760 (11th
Cir. 2006).
element.
Plaintiff makes no attempt to establish this required
In fact, he actively denies that it exists.
Accordingly,
there is no basis upon which a jury could rationally conclude that
his termination violated the First Amendment.
3.
Due Process
Finally, plaintiff suggests that his termination violated his
due process rights.
(Compl. [1] at ¶¶ 76, 83, 89.)
There are no
specific allegations in the complaint, much less evidence in the
record, to support a substantive due process claim.
Pate,
20
F.3d
1550,
1556
(11th
Cir.
See McKinney v.
1994)(“[t]he
substantive
component of the Due Process Clause protects those rights that are
‘fundamental,’ that is, rights that are ‘implicit in the concept of
ordered liberty’”)(quoting Palko v. Connecticut, 302 U.S. 319, 325
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(1937)) and Bell v. Metro. Atlanta Rapid Transp. Auth., 521 Fed.
App’x 862, 865 (11th Cir. 2013)(“Under Georgia law, a public employee
generally does not have a vested right to [continued] employment”).
The Court thus assumes that plaintiff is asserting a procedural due
process claim.
To prevail on a procedural due process claim, plaintiff must
prove: (1) that he was deprived of a constitutionally protected
liberty or property interest, (2) by state action, and (3) in the
absence of constitutionally adequate process.
Catron v. City of St.
Petersburg, 658 F.3d 1260, 1266 (11th Cir. 2011). Assuming the first
two
requirements
are
met,
it
appears
that
plaintiff
received
constitutionally adequate process in connection with his termination.
See Reams v. Irvin, 561 F.3d 1258, 1263 (11th Cir. 2009)(“The
fundamental requirement of due process is the opportunity to be heard
‘at a meaningful time and in a meaningful manner.’”)(quoting Mathews
v. Eldridge, 424 U.S. 319, 333 (1976)). Plaintiff received notice of
the charges pending against him and the ongoing internal affairs
investigation.
(Compl. [1] at ¶ 45.)
Following the investigation,
plaintiff was given a formal separation notice stating the reasons
for his termination and advising him of his right to appeal.
¶ 51 and DSMF [52] at ¶ 34.)
(Id. at
During his subsequent meeting with
Director Love, plaintiff had the opportunity to address the charges
against him and tell his side of the story.
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(DSMF [52] at ¶¶ 37-38.)
In addition, plaintiff has failed to prove or even allege that
adequate state remedies were unavailable to cure any procedural
deprivations that may have been committed by the City.
The Eleventh
Circuit has “repeatedly articulated the basic rule that a procedural
due process violation has not occurred when adequate state remedies
are available.”
Goodman v. City of Cape Coral, ___ Fed. App’x ___,
2014 WL 3702433, at *3 (11th Cir. July 28, 2014)(citing Reams v.
Irvin, 561 F.3d 1258, 1267 (11th Cir. 2009)).
This rule recognizes
that a state must have an opportunity to remedy procedural failings
“before being subjected to a claim alleging a procedural due process
violation.” Cotton v. Jackson, 216 F.3d 1328, 1331 (11th Cir. 2000).
Applying the rule, plaintiff must show that Georgia’s courts could
not have provided an adequate remedy before he can recover for any
procedural due process deprivation under § 1983.
Id.
See also East
v. Clayton Cnty., Ga., 436 Fed. App’x 904, 913 (11th Cir. 2011)
(discussing Cotton).
In Cotton, the Eleventh Circuit held that the writ of mandamus
is an available and adequate state remedy to protect the due process
rights of a Georgia plaintiff alleging violations stemming from his
termination. Cotton, 216 F.3d at 1332-33. The Georgia Supreme Court
subsequently adopted the reasoning of Cotton, specifically holding
that “a writ of mandamus” is an available remedy to cure procedural
violations related to a public employee’s termination.
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Joiner v.
Glenn, 288 Ga. 208, 209-10 (2010)(“a writ of mandamus is a procedural
remedy” that is available to cure procedural violations).
Under
Cotton and Joiner, plaintiff’s failure to seek a writ of mandamus or
to pursue other available state remedies is fatal to his procedural
due process claim.
B.
East, 436 Fed. App’x at 913.
There is no basis for imposing municipal liability.
Even if plaintiff could show a constitutional violation, he has
failed entirely to present any rational basis for imposing liability
on the City.
As mentioned above, there is no respondeat superior
liability under § 1983.
Craig, 643 F.3d at 1310.
In order to hold
the City liable on his federal claims, plaintiff must show that his
constitutional rights were violated as a result of a City custom or
policy.
Id.
Moreover, “[i]t is not sufficient for [the City’s]
policy to be tangentially related to [plaintiff’s] constitutional
deprivation.”
Cuesta v. Sch. Bd. of Miami-Dade Cnty., 285 F.3d 962,
967 (11th Cir. 2002).
force
of
the
Rather, the City policy must be the “moving
constitutional
liability under § 1983.
violation”
in
order
to
establish
Id. (citing Gilmere v. City of Atlanta, 737
F.2d 894, 901 (11th Cir. 1984)).
Plaintiff does not come close to meeting the above standard. In
his complaint, plaintiff summarily states that defendants Williams
and Love are “department chiefs with policy making authority” and
that their actions were “part of the custom . . . within the Roswell
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Police Force.”
(Compl. [1] at ¶¶ 73-74.)
He also alleges that the
actions of the defendants were “ratified” by the City and that he
suffered
various
deprivations
as
a
result
of
the
City’s
“unconstitutional policies.” (Id. at ¶¶ 75, 89.) Plaintiff does not
provide any evidence to support these conclusory allegations, which
are clearly insufficient to defeat a motion for summary judgment.
See Doe v. Sch. Bd. of Broward Cnty., Fla., 604 F.3d 1248, 1267 (11th
Cir. 2010)(finding plaintiff’s “conclusory assertion of a custom or
policy” insufficient on summary judgment) and Harvey v. City of
Stuart,
296
Fed.
App’x
824,
826
(11th
Cir.
2008)(“vague
and
conclusory allegations” of a custom or policy are insufficient to
support a claim for municipal liability under § 1983).
For this
additional reason, the Court GRANTS summary judgment to the City on
plaintiff’s § 1983 claims.
C.
Qualified immunity applies to the individual defendants.
Finally, and again assuming that plaintiff could demonstrate a
constitutional violation, his § 1983 claims against the individual
defendants are barred by qualified immunity.
A public official is
entitled to qualified immunity if an objectively reasonable official
in the same situation could have believed that his actions were
lawful.
Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002)
(citing Anderson v. Creighton, 483 U.S. 635, 638-41 (1987)).
To
receive qualified immunity, the official must first demonstrate that
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he was acting within the scope of his discretionary authority when
the allegedly wrongful acts occurred.
Id.
The burden then shifts to
the plaintiff to show that qualified immunity is not appropriate.
Id.
Plaintiff does not deny, and it is apparent to the Court, that
the individual defendants were acting within their discretionary
authority
when
they
investigated
the
August
13
incident
and
terminated plaintiff’s employment. See Holloman v. Harland, 370 F.3d
1252, 1265 (11th Cir. 2004)(explaining that the relevant inquiry is
whether the acts in question “are of a type that fell within the
employee’s job responsibilities”).
Plaintiff therefore has the
burden of showing that the actions of the individual defendants
violated a “clearly established” constitutional right.
Pelzer, 536 U.S. 730, 739 (2002).
Hope v.
To meet that burden, plaintiff
must cite case law giving defendants “fair warning” that their
conduct was unlawful.
Id. at 739-740.
He has failed to do so.
The
Court thus finds that qualified immunity applies, and GRANTS summary
judgment to the individual defendants on this alternative ground.
III. PLAINTIFF’S STATE LAW CLAIMS
As all of plaintiff’s federal claims have been removed from the
case, § 1367(c)(3) applies. That section states that “[t]he district
courts may decline to exercise supplemental jurisdiction over a claim
under subsection (a) if the district court has dismissed all claims
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over which it has original jurisdiction.”
28 U.S.C. § 1367(c)(3).
The Supreme Court has observed that:
a federal court should consider and weigh in each case, and
at every stage of the litigation, the values of judicial
economy, convenience, fairness, and comity in order to
decide whether to exercise jurisdiction over a case brought
in that court involving pendant state-law claims. When the
balance of these factors indicates that a case properly
belongs in state court, as when the federal-law claims have
dropped out of the lawsuit in its early stages and only
state-law claims remain, the federal court should decline
the exercise of jurisdiction by dismissing the case without
prejudice.
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)(footnote
omitted).
See also Hardy v. Birmingham Bd. of Educ., 954 F.2d 1546,
1550 (11th Cir. 1992).
The Court concludes that dismissal of plaintiff’s state law
claims is appropriate in this case because plaintiff’s federal claims
have been dismissed.
Moreover, “[n]eedless decisions of state law
should be avoided both as a matter of comity and to promote justice
between the parties, by procuring for them a surer-footed reading of
applicable law.
Certainly, if the federal claims are dismissed
before trial, even though not insubstantial in a jurisdictional
sense, the state claims should be dismissed as well.”
United Mine
Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966)(footnotes omitted).
Accordingly,
the
Court
DISMISSES
remaining state law claims.
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without
prejudice
plaintiff’s
CONCLUSION
For the foregoing reasons, the Court GRANTS defendants’ Motion
for Summary Judgment [52]. The clerk is directed to CLOSE this case.
SO ORDERED, this 30th day of July, 2014.
/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE
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