Lewis v. The City of Wadley et al
ORDER granting in part 13 Motion for Judgment on the Pleadings. This case is Remanded to the Superior Court of Jefferson County. Signed by Chief Judge J. Randal Hall on 6/9/17. (cmr)
IN THE UNITED
SOUTHERN DISTRICT OF GEORGIA
THE CITY OF WADLEY, a municipal
corporation organized under the
laws of the State of Georgia;
HAROLD MOORE, individually and as
Mayor, City of Wadley; IZELL MACK,
individually and as Councilman,
City of Wadley; JOHN MAYE,
individually and as Councilman,
City of Wadley; KENDRICK MCBRIDE,
individually and as Councilman,
City of Wadley; ELIZABETH MOORE,
individually and as Councilwoman,
City of Wadley; and JERRY THOMAS,
individually and as Councilman,
City of Wadley,
judgment on the pleadings.
The matter has been fully briefed
and is ripe for consideration.
For the reasons set forth
Defendants' motion is GRANTED IN PART.
The legal standards applicable to Federal Rule of Civil
Procedure 12(c) motions for judgment on the pleadings and Rule
Creations, Inc. v. City of Cumminq, Ga. , 558 F. Supp. 2d 1283,
1284 (N.D. Ga. 2008)
("A motion for judgment on the pleadings
is subject to the same standard as is a Rule 12(b) (6) motion
A motion for judgment on the pleadings, like a
motion to dismiss,
does not test whether the plaintiff will
ultimately prevail on the merits
the court must
accept as true all facts alleged in the complaint and construe
all reasonable inferences in the light most favorable to the
See Hoffman-Puah v. Ramsey, 312 F.3d 1222, 1225
Ashcroft v. Iqbal,
need not accept the
A complaint also must "contain sufficient factual matter,
plausible on its face.'"
Id^ at 678 (citing Bell Atl. Corp.
required to plead "factual content that allows the court to
draw the reasonable inference that the defendant is liable for
basis of a dispositive issue of law,
Pharm. , Inc.
no construction of the
factual allegations of the complaint will support the cause of
Executive 100, Inc. v. Martin Cntv.,
922 F.2d 1536, 1539 (11th
against Plaintiff Wesley L.
Lewis, who was employed as the
Chief of Police of the City of Wadley, Georgia,
1, 2009 to March 9, 2016.
(Compl., Doc. 1, Ex. 1, 1 4. )
of the present motion,
agree to the
following facts, which are drawn from Plaintiff's complaint:
On March 9, 2016, the Mayor of Wadley, Defendant Harold Moore,
Plaintiff exercised his appeal right to
Wadley's City Council.
Upon conducting a hearing on March 18,
the City Council overturned the Mayor's termination
decision and voted to reinstate Plaintiff.
Mayor vetoed that determination and refused to allow Plaintiff
to return to his post.
Plaintiff sued the City of Wadley,
capacities as council members.
Plaintiff's claims include a
claim for deprivation of due process under 42 U.S.C.
breach of an employment contract, and a petition for mandamus
Section 1983 creates a federal remedy for the deprivation
of federal rights.
826 F.2d 1030,
Wideman v. Shallowford Community Hosp.,
An actionable §
privileges or immunities secured by the Constitution and laws
of the United States and that the deprivation was by a person
or persons acting under color of law.2
claims that his termination, more specifically,
refusal to recognize the City Council's reinstatement of his
position, denied him due process "in clear violation of the
1 Plaintiff filed the complaint in the Superior Court of
Jefferson County, but in reliance upon Plaintiff's § 1983
claim, Defendants removed to this Court.
Plaintiff filed a
motion to remand, stating that he planned to drop the § 1983
claim. On September 30, 2016, this Court denied Plaintiff's
motion to remand as premature.
however, has never amended his complaint, and the § 1983 claim
2 There is no dispute that Defendants acted under color
laws of Georgia and the Charter and Ordinances of the City of
Wadley and in violation of the clear Personnel Policies of the
(Compl. 1 21.)
City of Wadley."
plead a violation of federal law.3
Plaintiff does not
Nevertheless, for purposes
of this motion, the Court will liberally construe Plaintiff's
allegations to assert a claim for violation of the Due Process
Clause of the United States Constitution.
procedural due process."
Zinermon v. Burch, 494 U.S. 113, 125
"The protections of the Due Process Clause apply to
in which the employee
protected 'property' interest."
Gilbert v. Homar, 520 U.S.
924, 928 (1997) . The parties in this case do not dispute that
Plaintiff had a protected property interest in his position as
Chief of Police.4
judgment on the pleadings, and Plaintiff does not address it
4 "The City Charter and General Ordinances adopted by
the City of Wadley, Georgia, state that the Mayor and City
a Chief of
shall hold his
office for one (1) year, unless sooner removed by the
Council." (Compl. 5 5.)
Further, Section 11 of the City of
Wadley's Personnel Policies and Procedures provides that the
Chief of Police can only be removed for just cause.
7.) Plaintiff was elected on January 1, 2016, and therefore,
he could only be removed for just cause in the ensuing year.
Thus, he had a protected property interest in continued
employment under Georgia law.
S.E.2d 889, 891 n.l
See Jones v. Chatham Ctv., 477
(Ga. Ct. App.
Defendants point out that a procedural due process claim is
not actionable under § 1983 "unless and until the State fails
to provide due process."
Zinermon, 494 U.S. at 126.
there is a procedural due process violation only if the State
fails to provide a means to remedy any alleged deprivation.
(11th Cir. 2003)
City of Atlanta,
347 F.3d 1232,
("[E]ven if a procedural deprivation exists
during an administrative hearing,
such a claim will not be
cognizable under § 1983 if the state provides a means by which
to remedy the alleged deprivation."); Cotton v. Jackson, 216
(11th Cir. 2000)
("It is the state's failure
procedurally flawed deprivation of a protected interest that
gives rise to a federal procedural due process
McKinnev v. Pate, 20 F.3d 1550, 1563 (11th Cir. 1994)
if [the plaintiff] suffered a procedural deprivation ... at
his termination hearing, he has not suffered a violation of
his procedural due process rights unless and until the State
remedies were available but the plaintiff
failed to take advantage of them, the plaintiff cannot rely on
procedural due process."
216 F.3d at 1331.
O.C.G.A. § 5-4-1 (a), which gives public employees the right to
The statute provides that a "writ of
certiorari shall lie for the correction of errors committed by
judicatory or any
Because Plaintiff could have filed a petition
for a writ of certiorari in state court, so the argument goes,
he cannot state a procedural due process claim under § 1983.
The crux of Defendants' argument rests upon a determination of
they were administrative.
See Cotton, 216 F.3d at 1332.
administrative function, is one in which all parties are as a
matter of right entitled to notice and to a hearing, with the
opportunity afforded to present evidence under judicial forms
of procedure; and that no one deprived of such rights is bound
by the action taken."
South View Cemetarv Ass'n v. Hailev, 34
S.E.2d 863, 866
216 F.3d at
1332; and Mack II v. Citv of Atlanta, 489 S.E.2d 357, 359 (Ga.
whether the parties were granted notice and an opportunity to
Laskar v. Bd.
740 S.E.2d 179,
of Regents of Univ.
(Ga. Ct. App.
System of Ga.,
Upon consideration of the process at issue in this case,
the Court concludes that the function of the City Council (and
subsequent veto of the Mayor) was quasi-judicial in nature.
Plaintiff was afforded notice and an opportunity to be heard.
More specifically, upon receiving notice of his termination on
Plaintiff appealed to the
compliance with the City of Wadley's Personnel Policies and
(Compl. 1 9.)
Pursuant to Section 12(B) (3)-(4)
Policies and Procedures,
the City Council
conducted a hearing on Plaintiff's appeal on March 18, 2016,
and determined that the decision to terminate him should be
(Id. II 10-11, 13.)
to reinstate" Plaintiff
The Mayor, however, "refused
(id^ 1 15),
act that Defendants
refer to as a valid veto under the City Charter of Wadley.5
determined that the County Board of Commissioners exercised
quasi-judicial power in upholding its decision to terminate
its County Administrator after affording the Administrator a
Plaintiff alleges that the Mayor's veto was illegal
(Compl. ! 15.)
be addressed infra.
This point of contention will
right to appeal the decision pursuant to its personnel policy.
Bd. of Comm'rs of Effingham Cty.
493 S.E.2d 21, 26
It has been generally held that the rulings of
such tribunals are quasijudicial in nature.'"6 Id.
in Salter, a city employee was terminated
the City Manager upheld the termination decision.
The Salter court held that the City Manager's function was
petition for a writ of certiorari under O.C.G.A. § 5-4-1 (a) .
409 S.E.2d at 89.
These analogous cases demonstrate
entertaining appeals of employment decisions like a tribunal
or civil service board exercises quasi-judicial power.
In response, Plaintiff conclusorily argues that the City
Council was simply carrying out an administrative duty to
determine whether it agreed with the termination decision.
6 "The right to petition the Superior Court concerning
employment decisions made by county and municipal civil
service boards has been explicitly upheld."
810 F.2d 1030, 1031 n.3 (11th Cir. 1987)
Lee v. Hutson,
Plaintiff states that the City Council's action was not an
appeal but an "integral part" of the administrative decision
as a condition precedent to termination.
(Doc. 26, at 4; see
administrative component of the termination process, it is not
articulated difference; it is also without foundation in that
Plaintiff himself alleges that the Wadley City Council acted
in an authoritative
conduct a hearing on the appeal and make a determination as to
whether disciplinary action against
upheld or reversed.") .)
In any event, the Court's focus is on
the process that was afforded to the terminated employee, and
notwithstanding Plaintiff's conclusory label that the City
Council's role was "administrative," due process (i.e., notice
and an opportunity to be heard) was afforded to Plaintiff by
the City Council.
This same focus on the process resulted in
a contrary finding
in a case
cited by Plaintiff
responsive brief - Laskar v. Bd. of Regents of Univ. System of
Ga. , 740
the Georgia Court of Appeals
professor by a Faculty Hearing Committee was
submitted a "recommendation" to the university president, who
was free to accept or reject the recommendation.
Id. at 182-
the Hearing Committee acted merely in an advisory
capacity to the president.
decision was made,
Id. at 184.
Once the termination
the employee had no right to any further
hearing on the matter.
On this point, the Laskar court
distinguished the case from Farmer, discussed above, where the
commissioners for review of the final termination decision.7
In the case at bar, the process shows that Plaintiff was
discharged and then granted a hearing and opportunity to be
heard by the City Council, much like the plaintiffs in Farmer
certified question to the Georgia Supreme Court of whether the
administrative role in revoking a certificate of public
convenience and necessity for a motor carrier that abandoned
Greyhound Lines v. Ga. Public Serv. Comm'n, 181 S.E. 834 (Ga.
1935) . In the case, the Georgia Supreme Court determined that
the hearing before the Public Service Commission was
disinterested application of law to facts.
Id. at 837-38.
Yet, Plaintiff cannot distinguish the more recent similar
application of law to facts,
but rather involved^ local
governing bodies sitting in review of a termination decision.
Further, Plaintiff argues that the Wadley City Council was not
acting as an independent appellate body. (Doc. 26, at 4.)
Yet, the governing bodies in Farmer and Salter that were found
to be quasi-judicial in nature were not independent either.
Thus, the City Council acted in a quasi-judicial
Plaintiff argues in brief that the supportive
cases of Farmer and Salter are distinguishable because they
terminate an employee.
Plaintiff continues that in this case,
Plaintiff, a decision which the Mayor refuses to recognize and
the City Council has failed to implement.
is it does
The problem with
power to veto the resolution of the City Council to reinstate
The Wadley City Charter8 provides in pertinent
Within 96 hours after the adjournment of any
council meeting, the city clerk shall present to
the mayor the record of proceedings of the meeting
and all ordinances and resolutions adopted at the
The mayor, within seven days of receipt
of an ordinance or resolution,
shall return it to
city clerk with or without his
vetoed by the mayor shall be considered at the next
regular meeting of the council, and the council may
pass the ordinance over the veto by the affirmative
vote of four of its members.
. . . The mayor's veto
shall extend to . . . any ordinance or resolution .
(The Charter of the City of Wadley, Doc. 13-1, Ex. to Defs.'
8 "Interpretation of statutes, ordinances, and charters
. . . presents a question of law for the court." City of
Buchanan v. Pope,
476 S.E.2d 53, 55
(Ga. Ct. App.
Br. in Supp. of Mot.
for J. on the Pleadings.)
and the City Council did not pass the matter over
In this case,
the final decision was in fact to terminate
Plaintiff's protestations to the contrary, it is
well settled in Georgia that when a municipal charter provides
for a mayoral veto of any resolution, the veto power extends
to the decision of whether to discharge an employee.
50 S.E.2d 69, 72 (Ga. 1948)
("[W]here the veto power is
specifically granted[, the] mayor correctly determined that he
had the legal right to veto the resolution discharging [the
comptroller]."); City of Ludowici v. Brown, 295 S.E.2d 90, 92
(relying upon Allen v. Wise, the court found that
a mayor could veto the appointment of a court employee because
the city charter provided, without limitation, that the mayor
had veto power over "any resolution or ordinance passed by the
cL Stephenson v.
(Ga. 1983) (recognizing that a city charter may specifically
grant a mayoral veto over employment decisions of the city
council but concluding that the city charter at issue in the
case excluded "elections" from the mayoral veto power,
thus, the mayor could not veto the council's election of a
that the Mayor's veto
was not valid
authority to make employment/personnel decisions is subject to
(Doc. 16, at 2 (citing Section 3-3 of the
The Wadley City Code also provides:
mayor and council shall elect a chief of police,
hold his office for one year, unless sooner removed by the
(quoting Wadley City Code § 18-1).)
whereby the City Council has the authority and power to pass
a resolution or ordinance over the Mayor's veto.
decisions in accord with the quoted provisions.9
Defendants' decision to terminate him by filing a petition for
writ of certiorari in the Superior Court of Georgia pursuant
The availability of this state remedy
precludes his § 1983 claim for violation of procedural due
Accordingly, Defendants are entitled to judgment on
the pleadings as to Plaintiff's sole federal claim.
9 To the extent the Wadley City Code provision regarding
removal of the Chief of Police conflicts with the Wadley City
Charter, Georgia law provides that the Charter governs.
476 S.E.2d at 56.
Upon the foregoing, the Court concludes that the factual
deprivation of due process under 42 U.S.C.
a claim for
supplemental jurisdiction over Plaintiff's state law claims.
See 28 U.S.C. § 1367(c)(3).
for judgment on the pleadings (doc. 13) is GRANTED IN PART.
Court of Jefferson County.10
ORDER ENTERED at Augusta, Georgia, this
day of June,
^STATES DISTRICT COURT
DISTRICT OF GEORGIA
remand, rather than dismiss, state claims over which they
decline to exercise supplemental jurisdiction." McDuffie v.
Broward County, Fla. , 654 F. App'x 408, 411 (11th Cir. 2016)
(quoted sources omitted).
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