Lewis v. The City of Wadley et al

Filing 37

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

STATES DISTRICT

COURT

FOR THE

SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

WESLEY L.

LEWIS,

*
*

Plaintiff,

*

v,

*

*

*

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,

CIVIL ACTION

CV

NO,

116-106

Defendants.

ORDER

Presently before

the

judgment on the pleadings.

Court

Defendants'

motion

for

The matter has been fully briefed

and is ripe for consideration.
below,

is

For the reasons set forth

Defendants' motion is GRANTED IN PART.

I.

LEGAL

STANDARD

The legal standards applicable to Federal Rule of Civil
Procedure 12(c) motions for judgment on the pleadings and Rule
12(b)(6)

motions

to

dismiss

are

the

same.

Roma

v.

Outdoor

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

to dismiss.")

A motion for judgment on the pleadings, like a

motion to dismiss,

does not test whether the plaintiff will

ultimately prevail on the merits
tests

the

Rhodes,

legal

416 U.S.

sufficiency
232,

236

of

of
the

(1974).

the case.

Rather,

complaint.

Therefore,

it

Scheur

v.

the court must

accept as true all facts alleged in the complaint and construe
all reasonable inferences in the light most favorable to the

plaintiff.

See Hoffman-Puah v. Ramsey, 312 F.3d 1222, 1225

(11th Cir.

2002) .

complaint's
facts.

The court,

legal

however,

conclusions

Ashcroft v. Iqbal,

as true,

556 U.S.

662,

need not accept the

only

its well-pled

677-79

(2009).

A complaint also must "contain sufficient factual matter,

accepted

as

true,

*to

plausible on its face.'"
v.

Twomblv,

550

U.S.

state a

claim

to

relief

that

is

Id^ at 678 (citing Bell Atl. Corp.

544,

570

(2007)).

The

plaintiff is

required to plead "factual content that allows the court to
draw the reasonable inference that the defendant is liable for

the

misconduct

alleged."

probability

requirement

beyond

.

. mere

550

U.S.

.

Twombly,
Broudo,

544

U.S.

Id.

at

the

pleading

possibility
at

336,

556-57
347

Although

.

.

(citing

there

stage,

. must

be

is

"something
alleged."

basis of a dispositive issue of law,

Durma

Pharm. , Inc.

When,

(2005)).

no

however,

on

v.
the

no construction of the

factual allegations of the complaint will support the cause of

action,

dismissal

of

the

complaint

Executive 100, Inc. v. Martin Cntv.,
Cir.

is

appropriate.

See

922 F.2d 1536, 1539 (11th

1991) .

II.

This

case

arises

BACKGROUND

out

of

against Plaintiff Wesley L.

an

employment

purposes

taken

Lewis, who was employed as the

Chief of Police of the City of Wadley, Georgia,

1, 2009 to March 9, 2016.

action

from January

(Compl., Doc. 1, Ex. 1, 1 4. )

of the present motion,

the parties

For

agree to the

following facts, which are drawn from Plaintiff's complaint:
On March 9, 2016, the Mayor of Wadley, Defendant Harold Moore,
terminated Plaintiff.

Plaintiff exercised his appeal right to

Wadley's City Council.

Upon conducting a hearing on March 18,

2016,

the City Council overturned the Mayor's termination

decision and voted to reinstate Plaintiff.

Subsequently, the

Mayor vetoed that determination and refused to allow Plaintiff
to return to his post.

Plaintiff sued the City of Wadley,

City

Council

members,

individually

capacities as council members.

the Mayor,

and

in

their

and the

official

Plaintiff's claims include a

claim for deprivation of due process under 42 U.S.C.

§ 1983,

breach of an employment contract, and a petition for mandamus
relief.1

III.

LEGAL ANALYSIS

Section 1983 creates a federal remedy for the deprivation

of federal rights.
Inc.,

826 F.2d 1030,

1983

claim

Wideman v. Shallowford Community Hosp.,

requires

1032

(11th Cir.

proof

of

a

1987).

An actionable §

deprivation

of

rights,

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

Id.

Here, Plaintiff

claims that his termination, more specifically,

the Mayor's

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.
(Doc. 12.)
Plaintiff,
however, has never amended his complaint, and the § 1983 claim
remains.

2 There is no dispute that Defendants acted under color
of

state

law.

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."

Notably,

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.

"A

§

1983

action may

procedural due process."
(1990).

be

brought

for

a

violation

of

Zinermon v. Burch, 494 U.S. 113, 125

"The protections of the Due Process Clause apply to

government

deprivation

of

those

employment

in which the employee

protected 'property' interest."

[benefits]

has

a

of

government

constitutionally

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

3

Defendants

raise

this

point

in

their

motion

for

judgment on the pleadings, and Plaintiff does not address it
in response.

4 "The City Charter and General Ordinances adopted by
the City of Wadley, Georgia, state that the Mayor and City
Council

shall

elect

a Chief of

Police,

who

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.
(Id. SI
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.

1996).

Through

their

motion

for

judgment

on

the

pleadings,

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.

That is,

there is a procedural due process violation only if the State
fails to provide a means to remedy any alleged deprivation.
Foxy Lady,

Inc.

v.

(11th Cir. 2003)

City of Atlanta,

Ga.,

347 F.3d 1232,

1238

("[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
F.3d 1328,

to

1331

provide

(11th Cir. 2000)

adequate

("It is the state's failure

procedures

to

remedy

the

otherwise

procedurally flawed deprivation of a protected interest that
gives rise to a federal procedural due process

claim.");

McKinnev v. Pate, 20 F.3d 1550, 1563 (11th Cir. 1994)

(vx[E]ven

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
refuses

deprivation.'7

adequate

state

to

make

(emphasis

available

in

a

means

original)).

to

remedy

Moreover,

the

"[i]f

remedies were available but the plaintiff

failed to take advantage of them, the plaintiff cannot rely on
that

failure

to

claim

that

the

state

deprived

him

of

procedural due process."
In

this

available

case,

remedy

Cotton,

Defendants

to

Plaintiff

216 F.3d at 1331.
contend

under

that

there

Georgia

was

law,

an

citing

O.C.G.A. § 5-4-1 (a), which gives public employees the right to
petition

the

state

superior

employment decisions.

court

for

review

of

certain

The statute provides that a "writ of

certiorari shall lie for the correction of errors committed by

any

inferior

powers."

judicatory or any

Id.

person

exercising

judicial

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
whether

Defendants'

actions were

they were administrative.
In

Georgia,

administrative
judges

is

"the

and

that

a

quasi-judicial

or

whether

See Cotton, 216 F.3d at 1332.
basic

a judicial

distinction

act by

quasi-judicial

officers

action,

between

other

contrary

an

than

to

an

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

1945), quoted

(Ga.

in Cotton,

216 F.3d at

1332; and Mack II v. Citv of Atlanta, 489 S.E.2d 357, 359 (Ga.

Ct.

App.

1997).

Thus,

the

distinction

generally turns

on

whether the parties were granted notice and an opportunity to
be heard.

Laskar v. Bd.

740 S.E.2d 179,

181

of Regents of Univ.

(Ga. Ct. App.

System of Ga.,

2013).

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
March

9,

2016,

Plaintiff appealed to the

City Council

in

compliance with the City of Wadley's Personnel Policies and
(Compl. 1 9.)

Procedures.
of

the

Personnel

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

reversed.

(Id. II 10-11, 13.)

to reinstate" Plaintiff

The Mayor, however, "refused

(id^ 1 15),

an

act that Defendants

refer to as a valid veto under the City Charter of Wadley.5
In

a

similar

case,

the

Georgia

Court

of

Appeals

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

5

Plaintiff alleges that the Mayor's veto was illegal

and wrongful.

(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.
(Ga.

Ct.

App.

1997).

entertaining

the

Commissioners

"clearly

service board.

The

v. Farmer,

Farmer

Administrator's

court

493 S.E.2d 21, 26
explained

appeal,

^performed the

the

function

Board

of

v.

1991)).

and

City

of

Likewise,

appealed

hearing,

a

in

of

civil

It has been generally held that the rulings of

such tribunals are quasijudicial in nature.'"6 Id.
Salter

that

the

Thomaston,

409

S.E.2d

88

(Ga.

(quoting
Ct.

App.

in Salter, a city employee was terminated

decision

to

the

City

Manager.

After

a

the City Manager upheld the termination decision.

The Salter court held that the City Manager's function was

quasi-judicial

and

his decision

was

subject

to

review

by

petition for a writ of certiorari under O.C.G.A. § 5-4-1 (a) .
Salter,

that

409 S.E.2d at 89.

a

local

governing

These analogous cases demonstrate

body,

such

as

a

city

council,

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)
omitted).

Lee v. Hutson,
(cited sources

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.
also

id.

at

5

("Because

the

(Doc. 26, at 4; see

Council's

decision

was

an

administrative component of the termination process, it is not
a

judicial

O.C.G.A.

determination

§

5-4-1.").)

subject
This

to

the

appeal

distinction

is

process
without

of
an

articulated difference; it is also without foundation in that

Plaintiff himself alleges that the Wadley City Council acted

in an authoritative

("[T]he

City

appellate capacity.

Council

has

authority

and

1

10

responsibility

to

(See Compl.

conduct a hearing on the appeal and make a determination as to
whether disciplinary action against

upheld or reversed.") .)

an

employee

should be

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

in his

responsive brief - Laskar v. Bd. of Regents of Univ. System of
Ga. , 740

S.E.2d 179.

determined

that

the

There,
review

the Georgia Court of Appeals

of

the

discharge

of

professor by a Faculty Hearing Committee was

10

a

not

tenured

quasi-

judicial

but

administrative

because

the

committee

only

submitted a "recommendation" to the university president, who

was free to accept or reject the recommendation.
83.

Thus,

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.

Id.

On this point, the Laskar court

distinguished the case from Farmer, discussed above, where the
terminated

county

opportunity to

employee

was

granted

present evidence

to

the

a

hearing

and

county board

of

commissioners for review of the final termination decision.7
Id.

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

7

Plaintiff

also

cites

a

1935

decision

involving

a

certified question to the Georgia Supreme Court of whether the
Public

Service

Commission

acts

in

a

quasi-judicial

or

administrative role in revoking a certificate of public
convenience and necessity for a motor carrier that abandoned

passenger

service

along

a certain

route

- Southeastern

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
administrative

in

nature

because

it

did

not

involve

a

disinterested application of law to facts.
Id. at 837-38.
Yet, Plaintiff cannot distinguish the more recent similar
cases

of

Farmer

and

Salter

that

application of law to facts,

also

did

not

involve

an

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.
11

and Salter.

Thus, the City Council acted in a quasi-judicial

manner.

Finally,

Plaintiff argues in brief that the supportive

cases of Farmer and Salter are distinguishable because they

involve

an

appeal

from a

terminate an employee.
the

final

decision

finalized

employment

decision to

Plaintiff continues that in this case,

of

the

City

Council

was

to

reinstate

Plaintiff, a decision which the Mayor refuses to recognize and

the City Council has failed to implement.
Plaintiff's

argument

is it does

not

The problem with

recognize

the

Mayor's

power to veto the resolution of the City Council to reinstate

Plaintiff.

The Wadley City Charter8 provides in pertinent

part:

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

meeting.

The mayor, within seven days of receipt

of an ordinance or resolution,

the
with

shall return it to

city clerk with or without his
his

veto.

.

.

.

Ordinances

and

approval,

or

resolutions

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
12

(Ga. Ct. App.

1996).

Br. in Supp. of Mot.

for J. on the Pleadings.)

the Mayor

vetoed the

Plaintiff,

and the City Council did not pass the matter over

the veto.

Thus,

Plaintiff.

City Council's

decision

In this case,

to

reinstate

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.
Wise,

50 S.E.2d 69, 72 (Ga. 1948)

Allen v.

("[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
(Ga. 1982)

(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
council");

cL Stephenson v.

Brown,

300

S.E.2d 803,

804-05

(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,

and

thus, the mayor could not veto the council's election of a
city attorney).

Plaintiff argues

that the Mayor's veto

13

was not valid

because

the

City

Charter

also

provides

that

the

Mayor's

authority to make employment/personnel decisions is subject to
(Doc. 16, at 2 (citing Section 3-3 of the

council approval.

City Charter).)

The Wadley City Code also provides:

mayor and council shall elect a chief of police,

"'The

who shall

hold his office for one year, unless sooner removed by the
council.'"

(Id.

provisions,

(quoting Wadley City Code § 18-1).)

however,

do

not

contradict

the

veto

These
process

whereby the City Council has the authority and power to pass
a resolution or ordinance over the Mayor's veto.

In essence

then,

employment

the

City Council

is the

last

arbiter

of

decisions in accord with the quoted provisions.9
In

conclusion,

Plaintiff

could have

sought

review of

Defendants' decision to terminate him by filing a petition for
writ of certiorari in the Superior Court of Georgia pursuant
to O.C.G.A.

§ 5-4-1.

The availability of this state remedy

precludes his § 1983 claim for violation of procedural due
process.

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.
of Buchanan,

476 S.E.2d at 56.
14

City

IV.

CONCLUSION

Upon the foregoing, the Court concludes that the factual

allegations

of

the

complaint will

not

support

deprivation of due process under 42 U.S.C.
that

federal

claim,

the

Court

a claim for

§ 1983.

declines

to

Without
exercise

supplemental jurisdiction over Plaintiff's state law claims.
See 28 U.S.C. § 1367(c)(3).

Accordingly,

Defendants' motion

for judgment on the pleadings (doc. 13) is GRANTED IN PART.
The

Clerk is

directed to

REMAND this

case

to the

Superior

Court of Jefferson County.10

ORDER ENTERED at Augusta, Georgia, this

V

day of June,

2017.

]F JUDGE

^STATES DISTRICT COURT
IN

10

"[Fjederal

district

courts

in

DISTRICT OF GEORGIA

removal

cases

must

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).
15