Beavers et al v. City of Atlanta, Georgia
Filing
22
ORDER AND OPINION granting 17 Defendants' Motion to Dismiss Plaintiff's Amended Complaint. Specifically, Plaintiffs claims under 42 U.S.C. § 1983 for violation of their rights to equal protection (Count Three) and procedural and subs tantive due process (Count Four), are DISMISSED WITH PREJUDICE; as a result, all federal claims asserted against the City of Atlanta and the individual defendants are DISMISSED WITH PREJUDICE. The Court DECLINES to exercise supplemental or pendent jurisdiction under 28 U.S.C. § 1367(c) and thus Plaintiffs state law claims (Counts One, Two, Five, Six and Seven), those claims are REMANDED TO THE SUPERIOR COURT OF FULTON COUNTY. Signed by Magistrate Judge Alan J. Baverman on 3/31/15. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
REGINALD BEAVERS, et al.,
Plaintiffs,
:
:
:
v.
:
:
CITY OF ATLANTA, GEORGIA, :
et al.,
:
Defendants.
:
CIVIL ACTION FILE NO.
1:13-CV-3487-AJB
O R D E R A N D O P I N I O N1
This matter is before the Court on a joint Motion to Dismiss Plaintiffs’ Amended
Complaint filed by Defendants City of Atlanta, Georgia (hereinafter “the City”); Mayor
Kasim Reed, individually and in his official capacity as Mayor of the City of Atlanta;
Yvonne Yancy, individually and in her official capacity as Commissioner of Human
Resources; and Patrick L. Labat, individually and in his official capacity as Chief of the
City of Atlanta Department of Corrections’ (collectively “Defendants”), [Doc. 17]. For
the reasons set forth below, the motion is GRANTED. Specifically, Plaintiffs’ Equal
Protection (Count Three) and Due Process (Count Four) claims are DISMISSED
WITH PREJUDICE and, with the Court declining to exercise pendent or
1
The parties have consented to the exercise of jurisdiction by the
undersigned pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil
Procedure. [See Doc. 13].
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supplemental jurisdiction over Plaintiffs’ state law claims (Counts One, Two, Five, Six
and Seven), those claims are REMANDED TO THE SUPERIOR COURT OF
FULTON COUNTY.
I.
Background
Plaintiffs originally filed their complaint in the Superior Court of Fulton County,
Georgia on July 2, 2013. The Superior Court assigned it Case No. 2013-CV205191. [See Doc. 1 at 1]. The City removed the action to this Court on October 22,
2013. [Id.]. Plaintiffs moved to amend the complaint on March 3, 2014, [Doc. 9],
which motion was granted on March 31, 2014. [Doc. 15]. The amended complaint,
inter alia, added the individual defendants as parties. [See Doc. 16]. Defendants filed
their motion to dismiss on April 15, 2014. [Doc. 17]. Plaintiffs responded on April 15,
2015. [Doc. 20].
In considering a motion to dismiss, the Court accepts the non-conclusory factual
allegations in the complaint as true and construes them in the light most favorable to
Plaintiffs. Speaker v. U.S. Dep’t of Health & Human Servs. Ctrs. for Disease Control
& Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010). The amended complaint provides
that Plaintiffs are current and former employees of the City’s Department of
Corrections. [Doc. 16 at ¶¶ 1, 16]. According to the City of Atlanta Code, “all officers
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and employees, except uniformed members of the department of fire, who are entitled
to earn annual leave shall also be entitled to earn sick leave with full pay to be
computed on the basis of one-fourth day for each five days of full-time paid service.”
[Id. at ¶ 22 (citing Atlanta, Georgia, Municipal Code (hereinafter “Code”) § 114-416)].
For the basis of calculating sick leave, a work day normally consists of eight hours of
work. [Id. at ¶ 24 (citing Code § 114-411)].
Prior to December 2008, Plaintiffs worked eight-hour shifts. [Id. at ¶ 27].
Plaintiffs allege that in December 2008, Defendants changed the hours for Department
of Corrections officers to twelve-hour work days. [Id. at ¶ 28]. As a result, starting
December 12, 2008 through July 4, 2012, Plaintiffs worked twelve-hour shifts and
forty-eight hours per week. [Id. at ¶¶ 1, 17, 30]. Plaintiffs allege that upon changing
to a twelve-hour work day, Plaintiffs’ sick leave and annual leave were improperly
calculated and they were deprived of their sick leave and annual leave without due
process. [Id. at ¶ 37].
On an eight-hour work day and forty hours in a work week, each employee was
entitled to one-fourth of an eight hour work day for sick leave equating to two hours
of sick leave. [Id. at ¶ 29]. At twelve hour work days and forty-eight hour work weeks,
Plaintiffs allege that they were entitled to one-fourth of a twelve hour work day for sick
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leave equating to three hours of sick leave. [Id. at ¶ 31]. However, Plaintiffs allege,
Defendants calculated Plaintiffs’ leave on the basis of a forty-hour work week, or eighthour work day, and Defendants only gave Plaintiffs two hours of sick leave for every
forty-eight-hour work week. [Id. at ¶ 32]. Plaintiffs allege they were thus deprived of
four hours of sick leave every month and forty-eight hours of sick leave every year.
[Id. at ¶ 33]. Additionally, when Plaintiffs sought to use one day of sick leave, they
were docked for twelve hours of leave, thus, Plaintiffs allege, Defendants took an
additional four hours of leave without cause. [Id. at ¶ 36].
Plaintiffs allege that upon changing to a twelve-hour work day, Plaintiffs’ sick
leave was calculated and removed at a rate inconsistent with the employee handbook
and in a different manner than other similarly situated city employees and other sworn
city officers. [Id. at 38]. Plaintiffs further allege that miscalculation of their leave led
to a miscalculation of retired Plaintiffs’ pension benefits and/or cash benefits for their
leave. [Id. at 39].
The amended complaint is in seven counts. Count One alleges that Plaintiffs are
entitled to specific performance by the City of the sick leave ordinance, that is, credit
for 1/4 day of sick leave for each 40 hours of service. [Doc. 16 at 13]. Count Two
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seeks attorneys fees and expenses of litigation under O.C.G.A. § 13-6-11 and
42 U.S.C. §§ 1988, 12205. [Doc. 16 at 14].
Count Three claims a violation of Plaintiffs’ rights to equal protection, and
although the claim is couched in terms of the City’s decision, damages in the form of
lost salary and benefits are sought from all Defendants.
[Doc. 16 at 14-15].
Count Four alleges that Defendants violated Plaintiffs’ procedural and substantive due
process rights by depriving them of vested sick leave without fair warning and
redress. [Doc. 16 at 15-17].
Count
Five
seeks
damages
for
breach
of
contract
against
all
Defendants. [Id. at 17-18]. Count Six seeks damages for breach of the covenant of
good faith and fair dealing against all Defendants. [Id. at 18-19]. In Count Seven,
Plaintiffs appear to seek enforcement of promises allegedly made by Defendants
regarding the earlier leave policy. [Id. at 19-20].
II.
Legal Standard
A court will grant a Rule 12(b)(6) motion to dismiss if the complaint “fail[s] to
state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Under
Rule 8, a pleading states a claim when it contains, inter alia, “a short and plain
statement of the claim showing that the pleader is entitled to relief.”
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Fed. R. Civ. P. 8(a)(2). In applying the Rule 12(b)(6) standard, the Court must construe
the amended complaint in the light most favorable to Plaintiffs, accepting all
well-pleaded factual allegations as true. Baker County Medical Services, Inc. v.
U.S. Atty. Gen., 763 F.3d 1274, 1276 (11th Cir. 2014) (citing Miyahira v. Vitacost.com,
Inc., 715 F.3d 1257, 1265 (11th Cir. 2013)). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Dismissal for failure
to state a claim is appropriate if the facts as pleaded fail to state a claim for relief that
is “plausible on its face.” Iqbal, 556 U.S. at 678 (citation omitted). A plaintiff’s
“obligation to provide the ‘grounds’ of his ‘entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555 (alterations and citation omitted). Despite the
fact that a complaint need not contain detailed factual allegations, it must contain “more
than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Iqbal,
556 U.S. at 678. Regardless of the alleged facts, however, a court may dismiss a
complaint on a dispositive issue of law. Marshall Cnty. Bd. of Educ. v. Marshall Cnty.
Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).
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III.
Discussion
Defendants move to dismiss Plaintiffs’ amended complaint on six grounds:
(1) Plaintiffs’ amended complaint does not satisfy the heightened pleading standards
required for action brought under 42 U.S.C. § 1983; (2) Plaintiffs’ amended complaint
fails to state any claim for relief pursuant to 42 U.S.C. § 1983 against the City;
(3) Plaintiffs’ amended complaint fails to state any claim for relief against Defendants
Reed, Yancy, and Labat in their individual capacities; (4) Defendants Reed, Yancy, and
Labat are entitled to qualified immunity; (5) Plaintiffs’ claims against Defendants Reed,
Yancy, and Labat sued in their official capacity should be dismissed as being
duplicative of claims against the City; and (6) Plaintiff’s claims for breach of covenant
should be dismissed as being duplicative of their breach of contract claims.
A.
Heightened Pleading
Defendants first argue that there is a heightened pleading standard for civil rights
actions which requires plaintiffs to craft complaints with specificity and does not allow
allegations that are vague and conclusory. [Doc. 17 at 4-5]. While Defendants cite to
cases that pre-date Iqbal and Twombly to assert a pleading standard that is specifically
tailored to civil rights actions, the standard set forth in Iqbal/Twombly applies to all
federal civil complaints, thus encompassing civil rights actions. Iqbal, 556 U.S. at 684
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(holding that the Supreme Court’s interpretation of Rule 8 governs the pleading
standard “in all civil actions and proceedings in the United States district courts.”).
Accordingly, the standard that the undersigned cites above is the standard that will be
used to govern the motion to dismiss. In any event, the Eleventh Circuit has held that
in light of Iqbal, there is no heightened pleading requirements for actions brought
pursuant to § 1983. Saunders v. Duke, 766 F.3d 1262, 1266 (11th Cir. 2014); Randall
v. Scott, 610 F.3d 701, 710 (11th Cir. 2010). As a result, Defendants’ motion to dismiss
is DENIED to the extent that it rests on the argument that Plaintiffs did not satisfy a
heightened pleading standard.
B.
Section 1983 Claims Against the City
1.
Arguments of the parties
Defendants argue that Plaintiffs have not articulated which facts support their
§ 1983 equal protection claim, nor do Plaintiffs articulate specific facts to support a
governmental policy, practice or custom that was the basis of any alleged equal
protection violation. [Doc. 17 at 6]. Defendants further argue that a municipality may
not be sued under § 1983 solely on the basis of wrongful acts of its employees or agents
and in order to impute liability, in that there must be a municipal custom or policy
which condones the employee conduct, [id. (citing Monell v. Dept. of Soc. Servs,
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436 U.S. 658, 694-95 (1978); Howard v. City of Robertsdale, 168 Fed. Appx. 883, 890
(11th Cir. Feb. 9, 2006)], and that Plaintiffs must demonstrate that the deliberate conduct
was the “moving force” behind the alleged injury. [Id. (citing Bd. of Cnty Comm’rs of
Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 404 (1997)]. Defendants also contend that
Plaintiffs’ amended complaint does not contain any allegations that the City maintained
an official policy of deliberately handling employee leave time in a manner that
violated their rights to equal protection, nor does the amended complaint reference any
custom or policy. [Id. at 8]. Instead, Defendants argue, the amended complaint merely
alleges that the City failed to calculate leave for Plaintiffs according to the City’s leave
policies. [Id.].
Defendants also accuse Plaintiffs of filing a shotgun pleading in which Plaintiffs
incorporated by reference all previous facts alleged to support legal conclusions of
violations of the Equal Protection Clause. [Id.]. Defendants argue that Plaintiffs
concede in their amended complaint that the City had pay and classification plans that
apply equally to all employees; therefore, Defendants contend that this concession
undermines Plaintiffs’ claim that the City has a custom or policy that violates Plaintiffs’
right to equal protection. [Id.].
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Defendants further contend that Plaintiffs have not alleged that the actions
complained of were performed by final policymakers who were capable of establishing
a municipal policy, nor identified a final policymaker that established an alleged policy
or custom. [Id. at 9].
Finally, Defendants argue that Plaintiffs have not alleged that the miscalculation
of their leave was a result of a policy or custom of the City and because the City has
policies prohibiting unequal treatment in employment practices and decisions, any
alleged discriminatory action by individual employees or Defendants cannot be imputed
to the City for purposes of § 1983 liability. [Id. at 10].
In response, Plaintiffs argue that the amended complaint alleges that two
constitutional rights were violated: (1) equal protection and (2) substantive and
procedural due process. [Doc. 20 at 5]. Plaintiffs contend that to set forth a claim for
violation of equal protection, a plaintiff may simply show that the unequal application
was intentional or purposeful. [Id. at 6 (citing Snowden v. Hughes, 321 U.S. 1 (1944))].
Plaintiffs then argue that there was a law in effect to calculate sick and annual leave and
that Defendants unequally applied the law by changing Plaintiffs’ work hours and
calculating and charging Plaintiffs annual leave at a rate inconsistent with the employee
handbook and differently than other similarly situated city employees and sworn
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officers, and that such unequal application was purposeful and intentional. [Id. at 6
(citing Doc. 16 ¶¶ 26, 28, 36, 38)]. Plaintiffs submit that they have stated a claim for
violation of substantive and procedural due process because the amended complaint
alleges that Plaintiffs had a vested and protected property interest in their annual and
sick leave and that Defendants took four additional hours of sick or annual leave
without process. [Id. at 7]. Plaintiffs then argue that in order to establish deliberate
indifference, a plaintiff needs to establish that a defendant had some knowledge of the
problem and there was a deliberate choice not to take action and that knowledge may
be imputed where the likelihood of a violation is so high that the need for correction is
obvious. [Id. (citing Lewis v. City of W. Palm Beach, Fla., 561 F.3d 1288, 1293
(11th Cir. 2009)]. Plaintiffs allege that the amended complaint sets forth sufficient facts
to show that Defendants acted indifferently. [Id. (citing Doc. 16 ¶ 32)]. Finally,
Plaintiffs argue that, in viewing Defendants’ willful breach as a policy, a causal
connection between the policy and the deprivation has been asserted repeatedly in
Plaintiffs’ amended complaint. [Id. at 8 (citing Doc. 16)].
2.
Discussion
Plaintiffs - and Defendants by virtue of removal to this Court - have turned what
is unquestionably a contract dispute into a federal civil rights issue. Plaintiffs allege
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that the City is liable under 42 U.S.C. § 1983 for violating Plaintiffs’ rights to equal
protection (Count Three), and violating Plaintiffs’ rights to substantive and procedural
due process (Count Four). [Doc. 16 at ¶¶ 50-62].2 In order for a municipality to be
found liable under Section 1983, a plaintiff must show that: (1) the plaintiff’s
constitutional rights were violated; (2) the municipality had a custom or policy that
constituted deliberate indifference to that constitutional right; and (3) the policy or
custom caused the violation. McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004)
(citing City of Canton v. Harris, 489 U.S. 378, 388 (1989)). Here, both parties have
assumed, without citing to any statute or case law to support the claim, that Plaintiffs
have a constitutional right to sick leave or to have it calculated accurately. Other courts
have held that there is no fundamental right to sick leave, benefits or compensation, and
that contractual disputes involving state and local governments do not give rise to the
level of a constitutional claim that can be pursued in federal court. See e.g. Ezekwo v.
N.Y.C. City Health & Hosps. Corp., 940 F.2d 775, 782-83 (2d Cir. 1991) (recognizing
2
The amended complaint improperly speaks both of alleged improper
actions of the City while seeking damages from “Defendants.” [See, e.g., Doc. 16,
¶¶ 52 (“There is no rational basis for the City’s decision to treat Plaintiffs differently
than similarly situated employees who worked eight hour shifts.”); 54 (“Plaintiffs
suffered damages as a result of Defendants’ actions, in the form of lost salary and
benefits.”)].
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that “not every [governmental] breach of a contractual right rises to the level of a
deprivation of property”) (citing Brown v. Brienen, 722 F.2d 360, 364 (7th Cir. 1983));
Ramsey v. Bd. of Educ. of Whitley Cnty, Ky., 844 F.2d 1268, 1274-75 (6th Cir. 1988)
(noting that while plaintiff may have a constitutionally protected property interest in her
sick leave, “an interference with property interest in a pure benefit of employment, as
opposed to an interest in the tenured nature of the employment itself, is an interest that
can be and should be redressed by a state breach of contract action and not by a federal
action under section 1983”); Patterson v. Portch, 853 F.2d 1399, 1405 (7th Cir. 1988)
(“The continued appropriateness of using federal courts to resolve run-of-the-mine
contract disputes between public employees and their employers may deserve fresh
consideration by the Supreme Court . . . .”). Thus, whether there has been a
constitutional violation is questionable at best.
Assuming, without deciding, that Plaintiffs have a constitutional right to sick
leave and an accurate calculation thereof, Plaintiffs have not set forth enough facts to
make their claim plausible and thus survive a motion to dismiss. Defendants’ primary
argument is that Plaintiffs’ amended complaint does not contain any allegations that the
City maintained an official policy of deliberately handling employee leave time in a
manner that violated the plaintiff-employees’ rights. The Court agrees. Plaintiffs have
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not set forth any facts alleging that Defendants were deliberately indifferent to the
proper calculation of Plaintiffs’ leave time. The § 1983 claims only allege that the
leave times were not properly calculated; it does not allege that Defendants were aware
of what could potentially be an error of calculation or that Defendants refused to act
when they became aware of the problem. The Court recognizes that in Counts Two and
Six of the Amended Complaint, Plaintiffs allege that they have “tried for over two and
one-half years to rectify [Defendants’] improper calculation of their leave,” that
“Defendants have failed and refused to correct the Plaintiffs leave within those two and
one-half years,” and that “[t]he City’s failure to fix the problem has been in bad faith
. . . .” [Doc. 16 at ¶¶ 49, 69-70]. However, this allegation is not made in either
Counts Three or Four, and was not alleged in the statement of facts. Even if this
conclusory allegation could be incorporated by reference, the fact that “Defendants”
failed to correct Plaintiffs’ leave without more fails to allege deliberate indifference to
a constitutional right, or that the challenged action itself violates federal law.
McDowell, 392 F.3d at 1291. Said another way, simply asserting that the Defendants
failed to calculate leave according to the City’s leave policy is insufficient to satisfy the
element that the City (or the individual defendants) must have acted with deliberate
indifference to the custom or policy. The amended complaint fails to allege any facts
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detailing what was told to whom or when and how the issue was brought to someone’s
attention.3
3
Moreover, even if the Court somehow could extrapolate the allegations
from Counts Two and Six into Counts Three and Four, the amended complaint violates
Federal Rule of Civil Procedure 8(a)’s requirement that a pleader make “a short and
plain statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a). “Under this rule, when a complaint alleges that multiple
defendants are liable for multiple claims, courts must determine whether the complaint
gives adequate notice to each defendant.” Pro Image Installers, Inc. v. Dillon,
No. 3:08cv273, 2009 WL 112953, at *1 (N.D. Fla. Jan. 15, 2009) (citing Atuahene v.
City of Hartford, 10 Fed. Appx. 33, 34 (2d Cir. May 31, 2001)); Bentley v. Bank of Am.,
773 F. Supp. 2d 1367, 1373 (S.D. Fla. 2011); Lane v. Capital Acquisitions & Mgmt.,
Co., No. 04-60602 CIV, 2006 WL 4590705, at *5 (S.D. Fla. Apr.14, 2006) (“By
lumping all the defendants together in each claim and providing no factual basis to
distinguish their conduct, the [ ] Complaint fails to satisfy the minimum standard of
Rule 8.”). Although a complaint against multiple defendants is usually read as making
the same allegation against each defendant individually, Crowe v. Coleman,
113 F.3d 1536, 1539 (11th Cir. 1997), factual allegations must give each defendant “fair
notice” of the nature of the claim and the “grounds” on which the claim rests.
Twombly, 550 U.S. at 555 n.3.
At times, a plaintiff’s “grouping” of defendants in a complaint may require a
more definite statement, see Beckwith v. Bellsouth Telecomms. Inc.,
146 Fed. Appx. 368, 372 (11th Cir. Aug. 22, 2005); Regengin v. Lonza Walkersville,
LLC, 997 F. Supp. 2d 1304, 1313 (N.D. Ga. 2014) (Batten, J.) (describing complaint
as a shotgun pleading where allegations against defendants were grouped such that it
failed to ascribe each of the complaint’s allegations to a specific defendant, but
allowing repleading); Veltmann v. Walpole Pharmacy, Inc., 928 F. Supp. 1161, 1164
(M.D. Fla. 1996). However, since the Court concludes that Plaintiffs have failed to
state a federal claim which supports this Court’s subject matter jurisdiction, a more
definite statement is moot.
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Plaintiffs need not show deliberate indifference if they can point to a policy
statement, ordinance, regulation, or decision officially adopted and promulgated by the
City or its officers that creates the unconstitutional action, Monell, 436 U.S. at 69, the
enforcement of which was “the moving force” of the violation of federally protected
rights. Brown, 520 U.S. at 404. While Plaintiffs have alleged that the decision to
change their work hours from eight to twelve created the unconstitutional action, there
is no allegation that this was “the moving force” for the City’s failure to accurately
calculate leave.
The decision to make Plaintiffs twelve-hour employees as opposed to eight-hour
employees is also facially constitutional.
When a municipal policy is facially
constitutional, a plaintiff must show that the city “was deliberately indifferent to the
known or obvious consequences of its policies.” Amer. Fed. of Labor v. City of Miami,
637 F.3d 1178, 1187-88 (11th Cir. 2011). As explained above, Plaintiffs have not
alleged that Defendants were deliberately indifferent to the known or obvious
consequences of their policies, as the amended complaint does not allege that any
Defendant alone or Defendants collectively knew or should have known that the change
would lead to improper calculation of leave. The amended complaint also does not
allege, and the Court does not conclude, as Plaintiffs argue, that the likelihood of
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violation from the change was so high that the need for correction was obvious. As a
result, Plaintiffs have not shown that the failure to accurately calculate Plaintiffs’ leave
time was deliberate or knowing, nor have Plaintiffs alleged any facts that suggests that
Defendants acted knowingly and/or deliberately to deprive Plaintiff’s of leave. The
only facts Plaintiffs have presented was that there was a change in their work schedule
which happened to result in a less favorable change in their leave calculation. The
change alone is not enough to demonstrate deliberate indifference. Thus, Plaintiffs
have not stated a claim for which relief can be granted under 42 U.S.C. § 1983.
Similarly, Plaintiffs have not alleged any facts that state a claim for violation of
equal protection. As Plaintiffs recognize, “[t]o set forth a claim for constitutional
violation of equal protection clause, for unequal application of a fair law, a plaintiff
may simply show that the unequal application was intentional or purposeful.”
[Doc. 20 at 6 (citing Snowden, 321 U.S. 1)]. Snowden also recognized that “an
erroneous performance of a duty, although a violation of statute, is not, without more,
a denial of equal protection of the law,” the element of intentional or purposeful
discrimination is not presumed, and the “[m]ere violation of a state statute does not
infringe the federal Constitution.” Snowden, 321 U.S. at 8, 11. Nowhere in the
amended complaint do Plaintiffs allege that Defendants, either singularly or
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collectively, intentionally or purposefully applied the leave calculation unequally.
While Plaintiffs cite to ¶¶ 26 and 28 of the amended complaint in support of the
argument that the allegation was made that the unequal application was intentional and
purposeful, these paragraphs merely allege that “[a]t or around December of 2008, the
Defendants changed Department of Correction Officers to twelve (12) hour work days,”
[Doc. 16 ¶ 28], and “Defendants inconsistently calculated the Plaintiffs’ leave,”
[Id. ¶ 26]. As Snowden directs, this Court may not presume that Defendants acted
intentionally or purposefully.
Therefore, the City’s motion to dismiss Plaintiffs’ claims for violation of equal
protection (Count Three) and procedural and substantive due process (Count Four) is
GRANTED, and these claims are DISMISSED WITH PREJUDICE. See Wagner
v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc)
(holding the district court “is not required to grant a plaintiff leave to amend his
complaint sua sponte when the plaintiff, who is represented by counsel, never filed a
motion to amend nor requested leave to amend before the district court.”).
C.
Claims Against Individual Defendants Reed, Yancy and Labat
Although the Court has dismissed the § 1983 claims against the City on grounds
that Plaintiffs have failed to state a § 1983 claim, out of an abundance of caution, the
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Court also discusses Defendants’ motion to dismiss specifically directed at the
allegations against the individual defendants.
1.
Arguments of the parties
Defendants argue that Plaintiffs have not articulated any particular facts against
the individual defendants. [Doc. 17 at 11, 14]. They also argue that the individual
defendants, being sued in their individual capacities, are entitled to qualified immunity
as any actions by Reed, Yancy, or Labat would be within the scope of their
discretionary authority. [Id. at 14].
Further, they contend that Plaintiffs have not
shown that they had a clearly established right to have their leave calculated in the
manner they contend is correct, nor can they show that the individual defendants knew
or should have known that they were violating some “clearly established” right.
[Id. at 12, 14]. Defendants also argue that the claims against the individual defendants
in their official capacities should be dismissed as being duplicative of claims against
the City. [Id. at 15 (citing Godby v. Montgomery Cnty Bd. of Educ., 996 F. Supp. 1390,
1403 (M.D. Ala. 1998))].
In response, Plaintiffs argue that the individual defendants are not entitled to
qualified immunity. [Doc. 20 at 8-10]. While Plaintiffs recognize that qualified
immunity protects government officials performing discretionary functions, it offers no
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protection from suit for the plainly incompetent or one who is knowingly violating and
deliberately indifferent to the federal law. [Id. at 8-9]. Plaintiffs argue that the right to
the benefit of an accurate calculation and charge of leave was so sufficiently clear that
a reasonable official would have known that a deviation from the legally defined
calculation would amount to a constitutional violation. [Id. at 10].
2.
Discussion
Defendants Reed, Yancy and Labat are named in the amended complaint
individually and in their official capacities. [See Doc. 16]. In the “Parties” section of
the amended complaint, Plaintiffs allege:
a) Defendant, Mayor Kasim Reed, is and was at all relevant times the
Mayor of the City of Atlanta. Mr. Reed is sued in his official and
individual capacity. According to the Atlanta Municipal Code, the work
schedule for each department shall be established by the department head
in conjunction with the commissioner of human resources and approval
of the mayor. Atlanta, Georgia, Municipal Code § 114-411. Defendant
Mayor Kasim Reed may be served at 55 Trinity Ave., Atlanta, Georgia
30303.
b) Defendant Yvonne Yancy, is and was at all relevant times was the City
of Atlanta Commissioner of human resources. Ms. Yancy is sued in her
official and individual capacity. According to the Atlanta Municipal
Code, the work schedule for each department shall be established by the
department head in conjunction with the commissioner of human
resources and approval of the mayor. Atlanta, Georgia, Municipal Code
§ 114-411. Defendant Yvonne Yancy may be served at 68 Mitchell St.,
S.W., Suite 2150, City Hall Towers, Atlanta, Georgia 30303.
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c) Defendant Patrick L. Labat, at all relevant times was and is the Chief
of the City of Atlanta Department of Corrections. Mr. Labat is sued in his
official and individual capacity. According to the Atlanta Municipal
Code, the work schedule for each department shall be established by the
department head in conjunction with the commissioner of human
resources and approval of the mayor. Atlanta, Georgia, Municipal Code
§ 114-411. Defendant Patrick L. Labat may be served at 254 Peachtree
Street SW Atlanta, GA 30303.
[Doc. 16 at ¶ 6]. These Defendants are not mentioned individually anywhere else in the
amended complaint. [See generally Doc. 16]. The amended complaint merely uses the
all-encompassing term “Defendants” for each allegation made in the amended
complaint. Thus, the amended complaint fails to state what actions the individual
defendants took to satisfy any of the claims alleged. This type of shotgun pleading is
not permissible. Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp,
305 F.3d 1293, 1295-96 (11th Cir. 2002); Wagner v. First Horizon Pharmaceutical
Corp., 464 F.3d 1273, 1279 (11th Cir. 2006); Beckwith, 146 Fed. Appx. at 372.
Plaintiffs allege that referencing all Defendants in the allegations is proper
because Plaintiffs are alleging that Defendants acted in concert. [Doc. 20 at 4].
However, this assertion is not made in the amended complaint. [See Doc. 16].
A plaintiff may not raise new claims in response to a motion to dismiss without seeking
leave to file an amended complaint. See Huls v. Llabona, 437 Fed. Appx. 830, 832 n.5
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(11th Cir. Aug. 15, 2011) (per curium) (“Because Huls raised this argument for the first
time in his response to Llabona’s motion to dismiss, instead of seeking leave to file an
amended complaint, pursuant to Fed. R. Civ. P. 15(a), it was not properly raised
below.”); see also Morgan Distrib. Co., Inc. v. Unidynamic Corp., 868 F.2d 992, 995
(8th Cir. 1989) (“ ‘[I]t is axiomatic that the complaint may not be amended by the briefs
in opposition to a motion to dismiss. To hold otherwise would mean that a party could
unilaterally amend a complaint at will, even without filing an amendment, and simply
by raising a point in a brief.’ ”) (quoting Car Carriers, Inc. v. Ford Motor Co.,
745 F.2d 1101, 1107 (7th Cir. 1984)); Shanahan v. City of Chicago, 82 F.3d 776, 781
(7th Cir. 1996) (holding that a complaint cannot be amended by a brief in opposition);
Katz v. Odin, Feldman & Pittleman, P.C., 332 F. Supp. 2d 909, 917 n.9
(E.D. Va. 2004) (quoting Morgan, 868 F.2d at 995); Davis v. Cole, 999 F. Supp. 809,
813 (E.D. Va. 1998) (refusing to consider additional allegations in response to motion
to dismiss).
Cf. Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315
(11th Cir. 2004) (noting that a “plaintiff may not amend her complaint through argument
in a brief opposing summary judgment.”); Jallali v. Nova Se. Univ., Inc.,
486 Fed. Appx. 765, 767 (11th Cir. Aug. 9, 2012) (holding that “a party cannot amend
a complaint by attaching documents to a response to a motion to dismiss”). Nor does
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a plaintiff’s post hoc allegation suffice to defeat a motion to dismiss. See Central
Transp., LLC v. Atlas Towing, Inc, 884 F. Supp. 2d 207, 218 (E.D. Pa. 2012) (“We
cannot consider these post hoc allegations in ruling on defendants’ motion to dismiss”
where
allegations
missing
from
complaint.);
see
also
Am.
Petroleum
Inst. v. Technomedia Intern.., Inc., 699 F. Supp. 2d 258, 265 (D.D.C. 2010) (rejecting
“post hoc attempt to remedy a deficiency in the pleading” and noting that
“[n]otwithstanding the wide latitude given to litigants at the pleading stage, a pleading
is not to be used as a constantly moving target that the pleader can reformulate every
time the pleading is challenged. Sooner or later, it ‘must stand or fall on its own.’ ”)
(internal citations omitted; punctuation altered).
Even if the amended complaint can be construed to have alleged each allegation
against each defendant, Plaintiffs do not allege any facts that would defeat the
individual defendants’ qualified immunity for purposes of being sued in their individual
capacities. To defeat a municipal official’s qualified immunity, it is not enough that
Defendants violated Plaintiffs’ constitutional rights; Plaintiffs must also allege that
Defendants violated “clearly established statutory or constitutional rights of which a
reasonable person would have known.” Hope v. Pelzer, 536 U.S. 730, 739 (internal
quotations omitted) (citations omitted). “For a constitutional right to be clearly
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established, its contours ‘must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right. . . . [that is] in the light of preexisting law, the unlawfulness must be apparent.’ ” Id. (quoting Anderson v. Creighton,
483 U.S. 635, 640 (1987)).
First, Plaintiffs have not set forth any facts which allege that the individual
defendants violated Plaintiffs’ asserted constitutional rights or even the City’s
ordinance. Assuming that the Plaintiffs’ description of the individual defendants in the
“Parties” section of their amended complaint alleges actions that the individual
defendants are authorized to undertake, the amended complaint does nothing more than
allege that the individual defendants have the right to set and change employee work
hours. The amended complaint does not allege that any of the individual defendants
had any role in making sure leave time was accurately applied to all city employees
according to the Code, or even that any of the individual defendants had any control in
the application of leave calculations apart from setting the work hours.
Even if Plaintiffs’ all-encompassing reference to “Defendants” when making
allegations that Defendants failed to accurately calculate Plaintiffs’ leave was sufficient
to state a claim against the individual defendants, qualified immunity still operates here
as Plaintiffs have not, and likely cannot, establish that Plaintiffs have a clearly
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established constitutional right to sick and/or annual leave or proper calculation thereof.
See supra at 12-13.
Because Plaintiffs have failed to allege any facts against the individual
defendants, either in their individual or official capacities, the § 1983 claims against
Defendants Reed, Yancy, and Labat are DISMISSED. Even if Plaintiffs had stated a
claim, the individual defendants have qualified immunity and thus would be dismissed
in their individual capacities, and accordingly, they would be dismissed in their official
capacities as duplicative claims against Defendant City of Atlanta. See Busby v. City
of Orlando, 931 F.2d 764, 776 (11th Cir. 1991) (finding that “to keep both the City and
the officers sued in their official capacity as defendants . . . would [be] redundant and
possibly confusing to the jury.”).
As a result, the federal claims against the individual defendants are DISMISSED
WITH PREJUDICE.
D.
The Court does not exercise pendent or supplemental jurisdiction
over the remaining claims
Counts Three and Four are the only counts which supported subject matter
jurisdiction in this Court. “ ‘Subject matter jurisdiction . . . refers to a tribunal’s power
to hear a case.’ ” Lobo v. Celebrity Cruises, Inc., 704 F.3d 882, 891 (11th Cir. 2013)
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(quoting Morrison v. Nat’l Australia Bank, Ltd., 561 U.S. 247, 254 (2010)). “As the
Federal Rules of Civil Procedure state, ‘If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action.’ ” Williams v. Warden,
Fed. Bureau of Prisons, 713 F.3d 1332, 1337-38 (11th Cir. 2013) (quoting
Fed. R. Civ. P. 12(h)(3)); accord Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012)
(“When a requirement goes to subject-matter jurisdiction, courts are obligated to
consider sua sponte issues that the parties have disclaimed or have not presented.”); id.
(“Subject-matter jurisdiction can never be waived or forfeited.”); see also Cadet v.
Bulger, 377 F.3d 1173, 1179 (11th Cir. 2004) (“Federal courts are obligated to inquire
into subject-matter jurisdiction sua sponte whenever it may be lacking.”) (quotation
marks omitted). Where a case originally was filed in state court, and then removed to
the district court, the court may remand the case to the state court. See, e.g., Fallin v.
Mindis Metals, Inc., 865 F. Supp. 834, 842 (N.D. Ga. 1994) (Hull, J.) (“The Court
(1) finds that there is not any original federal jurisdiction over the state claims
remaining in this action, (2) declines, in the Court’s discretion under
28 U.S.C. § 1367(c), to exercise supplemental discretion, and thus (3) finds that, under
28 U.S.C. § 1447(c), the Court does not have subject matter jurisdiction over this
action, and this case should be remanded to state court.”); see also Guzzino v.
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Felterman, 191 F.3d 588, 594-96 (5th Cir. 1999) (affirming district court’s decision to
remand case to state court rather than retain supplemental jurisdiction over remaining
state-law claims).
The Court initially was able to exercise supplemental jurisdiction of Plaintiffs’
state law claims under 28 U.S.C. § 1367(a) because it had subject matter jurisdiction
over the due process and equal protection claims under § 1983. As all federal question
matters have been resolved and the parties are not of diverse citizenship, this Court no
longer has original jurisdiction over this matter. See 28 U.S.C. §§ 1331, 1332.
A district court has discretion to decline to exercise supplemental jurisdiction over
remaining state law claims. 28 U.S.C. § 1367(c); Rowe v. City of Fort Lauderdale,
279 F.3d 1271, 1288 (11th Cir. 2002); Hardy v. Birmingham Bd. of Educ.,
954 F.2d 1546, 1550 (11th Cir. 1992). Section 1367(c) provides that:
The district courts may decline to exercise supplemental jurisdiction over
a claim under subsection (a) if (1) the claim raises a novel or complex
issue of State law, (2) the claim substantially predominates over the claim
or claims over which the district court has original jurisdiction, (3) the
district court has dismissed all claims over which it has original
jurisdiction, or (4) in exceptional circumstances, there are compelling
reasons for declining jurisdiction.
28 U.S.C. § 1367(c). Under this code section, the Court is empowered to act
sua sponte. Rittenhouse v. DeKalb Cnty., 575 F. Supp. 1173, 1175 (N.D. Ga. 1975)
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(Freeman, J.); see also Santiago v. Hernandez, 53 F. Supp. 2d 264, 273-74
(E.D.N.Y. 1999) (collecting cases in which the court invoked § 1367(c) sua sponte).
If, after examining the factors listed in § 1367(c), the district court “decides that it has
the discretion . . . to decline jurisdiction . . . it should consider the traditional rationales
for pendent jurisdiction, including judicial economy and convenience, in deciding
whether or not to exercise that jurisdiction.” Palmer v. Hosp. Auth. of Randolph Cnty.,
22 F.3d 1559, 1569 (11th Cir. 1994). The Court also should consider fairness and
comity. Id.
Consideration of these factors weighs heavily in favor of declining jurisdiction.
First, this Court has dismissed all claims over which it had original jurisdiction.
28 U.S.C. § 1367(c)(3). Second, the issues remaining are contract disputes between a
local government (including elected and appointed officials) and its employees,
interpretation of which is best left to the state courts. Eli Lilly and Co. v. Air Exp.
Intern. USA, Inc., 615 F.3d 1305, 1314 (11th Cir. 2010); In re Chira, 567 F.3d 1307,
1311 (11th Cir. 2009) (“The interpretation of private contracts is ordinarily a question
of state law.”) (quotations and citations omitted); Ramsey, 844 F.2d at 1272-75.
Moreover, issues of comity and fairness suggest that the state courts decide
issues of compensation between local governments and their employees. Finally, while
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this action has been pending in this Court pending a ruling on the motion to dismiss,
the parties appear to have engaged in only limited discovery. [See Docs. 18, 19, 21].
Thus, the proceedings have not advanced very far in this Court.
Accordingly, Plaintiffs’ state law claims (Counts One, Two (to the extent it is
based on O.C.G.A. § 13-6-11), and Five through Seven) are REMANDED TO THE
SUPERIOR COURT OF FULTON COUNTY pursuant to § 1367(c) and
28 U.S.C. § 1447(c). As a result, the Court declines to rule on the remaining grounds
in Defendants’ motion to dismiss, since those issues are best decided by the Superior
Court upon remand.
IV.
Conclusion
For the aforementioned reasons, Defendants’ motion to dismiss, [Doc. 17],
Plaintiffs’ amended complaint, [Doc. 16], is GRANTED. Specifically, Plaintiffs’
claims under 42 U.S.C. § 1983 for violation of their rights to equal protection
(Count Three) and procedural and substantive due process (Count Four), are
DISMISSED WITH PREJUDICE; as a result, all federal claims asserted against the
City of Atlanta and the individual defendants are DISMISSED WITH PREJUDICE.
The Court DECLINES to exercise supplemental or pendent jurisdiction under
28 U.S.C. § 1367(c) and thus Plaintiffs’ state law claims (Counts One, Two, Five, Six
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and Seven), those claims are REMANDED TO THE SUPERIOR COURT OF
FULTON COUNTY.
The Clerk shall enter judgment in favor of Defendants.
IT IS SO ORDERED and DIRECTED, this the 31st day of March, 2015.
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