Opinion
Civil Action No. 99-2952, Section "G"
June 1, 2000
MEMORANDUM AND ORDER
Background
Plaintiff filed the present action to recover damages resulting from alleged violations of his civil rights, pursuant to 42 U.S.C. § 1983 and 1985. Plaintiff names as defendants Mayor Marc Morial in his individual and official capacity, New Orleans Police Chief Richard Penrungton in his individual and official capacity, and the City of New Orleans. Plaintiff alleges that in August 1999, he was suspended for 120 days from his position as a police officer with the New Orleans Police Department on grounds that he was being charged with crimes of kidnapping and rape. He alleges that the charges were publicized by Mayor Morial and/or Police Chief Pennington in a newspaper article and/or a televised press conference simultaneously with plaintiff's suspension.
Plaintiff cites a plethora of constitutional rights that he alleges the defendants violated. First, he alleges that defendants denied him procedural due process in violation of the 5th and 14th amendments by failing to give him notice of his suspension, denying him a pre-suspension name-clearing hearing, and publicizing the criminal (rape) charges at a press conference held on the same day as his suspension. He further alleges that the publicizing of the alleged crimes violated his 4th Amendment right to privacy and his 6th Amendment right to an impartial jury in his subsequent criminal trial. Finally, he alleges that he was denied equal protection of the laws under the 14th amendment because he and other black police officers were discriminated against in connection with employment decisions.
The criminal proceedings against plaintiff in state court are ongoing. Neither party, however, has raised the issue of abstention or justiciability. Instead, defendants have moved to dismiss plaintiff's suit pursuant to Fed.R.Civ.P. 12(b)(6) on grounds that plaintiff fails to state a cause of action under § 1983, and/or for an order requiring plaintiff to file a Schultea reply in connection with the officers' claims of qualified immunity. Plaintiff opposes the motion.
Analysis
A defendant may move for dismissal of a complaint that fails to state a claim for which relief can be granted. Fed.R.Civ.P. 12(b)(6). A complaint is subject to Rule 12(b)(6) dismissal if it appears beyond a doubt that a plaintiff can prove no set of facts in support of its claim that would entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99 (1957); Rubenstein v. Collins, 20 F.3d 160 (5th Cir. 1994). In deciding a motion to dismiss, the court takes all factual allegations contained in the complaint as true and resolves any ambiguities or doubts regarding sufficiency of the claim in favor of the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683 (1974); Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993). A court need not, however, accept as true allegations that are conclusory in nature. See Kaiser Aluminum Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982). Further, a complaint that shows relief to be barred by an affirmative defense may be dismissed for failure to state a claim. Id.
A. Section 1983
The primary vehicle for bringing constitutional claims against local governments and officials is 42 U.S.C. § 1983. This statute provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983 (1999).
This section contemplates recovery of compensatory damages, as well as equitable relief, against a local government official for the harm that he inflicts because of his constitutional violations, subject to any personal immunities of the officer. And such damages are also available against a local government when its officer has carried out official policy. See Monell v. Department of Social Services, 436 U.S. 658 (1978).
B. Official Capacity Claims
A suit against a government official in his official capacity is treated as a suit against the entity. Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); Baker v. Putnal, 75 F.3d 190, 195 (5th Cir. 1996). Official capacity claims against Marc Morial and Superintendent Richard Pennington in their official capacity are thus treated as claims against the City of New Orleans.
Section 1983 provides for the imposition of liability on any person who, acting under color of state law, deprives another of rights or privileges secured by the Constitution or laws of the United States. 42 U.S.C. § 1983. Although municipalities are considered "persons" within the meaning of section 1983, the constitutional deprivation must have its origin in what can' fairly be said to be a policy of a municipality. Monell v. City of New York Dept. of Social Services, 436 U.S. 658, 694 (1978).
No liability exists for governmental entities based on a vicarious liability or respondeat superior theory, that is, solely because it employs a tortfeasor. Id., see also Board of the County Commissioners of Bryan County v. Brown, 520 U.S. 397, 117 S.Ct. 1382, 1388 (1997). Instead, the municipality will be liable only when an official policy or custom inflicts the injury of which the plaintiff complains. Id.
To show an unconstitutional policy or custom, the plaintiff must (1) identify the policy or custom, (2) connect the policy or custom with the government entity itself, and (3) show that the particular injury was incurred because of the execution of that policy. Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984) (en banc). The Fifth Circuit defines an official policy as "a policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality's lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority." Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992). Although the Supreme Court has recognized that even a single decision by a final policymaker may represent official policy,see Pembaur v. Cincinnati, 475 U.S. 469, 483-84 (1986), the Court has emphasized that only the decisions of officials possessing " final policy making authority" represent official policy. See Jett v. Dallas md. School Dist., 491 U.S. 701 (1989) (emphasis added).
The determination of whether a particular official has final policymaking authority with regard to the conduct at issue is a legal question controlled by state or local law. Id. at 737; see also Worsham v. City of Pasadena, 881 F.2d 1336, 1340-41 (5th Cir. 1989). The final policymaker is the official or body upon whom state or local law has conferred the power to adopt rules governing the conduct of the governmental entity's employees; merely granting an employee some discretionary authority does not make the employee a final policymaker.See City of St. Louis v. Prapotnik, 485 U.S. 112 (1988); Jett v. Dallas Indep. Sch. Dist., 7 F.3d 1241, 1246-47 (5th Cir. 1993) ("Jett II"). Officials may be policymakers in a certain area even though they have delegated decision-making authority to others, who may be top executive decisionmakers yet not final policymakers. For instance, in cases where one body makes the rules applicable to public employees but a second individual or group makes hiring and firing decisions, it has been held that the final policymaker is the city official with whom state or municipal law conferred the power to exercise final review of a challenged decision. See Prapotnik, 485 U.S. at 127-29 (where city charter conferred final employment policy-making authority on the civil service commission, plaintiff's immediate supervisors were not final policymakers even though they were the ones who made the decision to terminate plaintiff's employment); see also Worsham, 881 F.2d at 1341 (5th Cir. 1989) (city council, not city officials who suspended employee, were final policymakers). But see Rosenstein v. City of Dallas, 876 F.2d 392, 397 (5th Cir. 1989) (Chief of Police conceded he set all policies for police department, including decision whether to grant name-clearing hearing to terminated police officer).
Here, plaintiff, in his Complaint, alleges only that Mayor Marc Morial "is responsible for the New Orleans Police Department" and that Police Chief Richard Pennington "is the officer who held a press conference on local and national television declaring that [plaintiff] was and is a rapist." Complaint at ¶¶ 13-14. Plaintiff nowhere in his complaint identifies what the unconstitutional official policy was, who under state or local law was the final policymaker with respect to the allegedly unconstitutional conduct, and/or assuming that the final policymaker was someone other than the defendants, why the city should be liable for the defendants' conduct.
In his memorandum in opposition to the motion to dismiss, plaintiff asserts that "it was an unwritten policy, custom, or usage to initiate a press conference and invade plaintiff's right[s] . . ." and also that "the Mayor and City of New Orleans demonstrated deliberate indifference by failure to exercise reasonable care in initiating a press conference stating plaintiff was a rapist and failing to give notice and an opportunity to be heard before plaintiff was suspended." Under the foregoing authority, these allegations, even if they had been included in the complaint, as opposed to the memorandum opposing dismissal, would be insufficient to allege municipal liability under § 1983.
Although the Supreme Court has rejected a heightened pleading standard for complaints alleging municipal liability, see Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 167 (1993) (Rehnquist, C.J.), I find that even under the liberal pleading standard of Rule 8(a), plaintiff fails to state a claim for municipal liability.
Plaintiff will be granted leave to amend his complaint to allege, if he can, facts and law that support an allegation of municipal liability for the acts of the Mayor and Police Chief.
C. Individual Capacity Claims
In their motion to dismiss the claims against them in their individual capacity, defendants Morial and Pennington argue that as public officials, they are entitled to qualified immunity, and plaintiff has failed to plead facts with the requisite specificity sufficient to satisfy the heightened pleading requirement applicable when defendants invoke the defense of qualified immunity.
The doctrine of qualified immunity shields government officials from liability for civil damages when "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). When defendants claim qualified immunity, the court must make two separate inquiries. First, the court must determine whether the plaintiffs have alleged a violation of a clearly established constitutional right. See Williams v. Bramer, 180 F.3d 699, 702 (5th Cir. 1999) ( citing Siegert v. Gilley, 500 U.S. 226, 231-32, 111 S.Ct. 1789 (1991)).
Second, if the constitutional right has been violated, the court must determine whether the governmental official's actions were objectively reasonable. See Williams, 180 F.3d at 702 ( citing Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034 (1987)). Reasonableness is defined in light of legal rules that were clearly established at the time the actions were taken. Id. Objective reasonableness is a matter of law for the courts to decide; however, underlying historical facts may be in dispute that are material to the reasonableness determination. Mangieri v. Clifton, 29 F.3d 1012, 1015-16 (5th Cir. 1994). The touchstone of this inquiry is whether a reasonable person would have believed that his conduct conformed to the constitutional standard in light of the information available to him and the clearly established law. See Gutierrez v. City of San Antonio, 139 F.3d 441, 447 (5th Cir. 1998).
As discussed previously, the United States Supreme Court in Leatherman rejected the Fifth Circuit's imposition of a heightened pleading requirement in § 1983 actions. The Fifth Circuit has construed the United States Supreme Court's holding in Leatherman to abandon the heightened pleading requirement only for official capacity claims. See Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995). While a short and plain statement of the claim pursuant to Fed.R.Civ.P. 8(a)(2) generally suffices to defeat a Rule 12(b)(6) motion to dismiss, a heightened standard applies once individual defendants raise the defense of qualified immunity. The court may, on defendant's motion or on its own, order plaintiff to file a reply pursuant to Rule 7(a), requiring greater factual detail in response to the defense of qualified immunity. The principal justification for this is that qualified immunity decisions should be resolyed at the earliest possible stage of litigation, even before discovery, if possible. Id. at 1432-33.
Under the qualified immunity analysis, I turn first to whether Lee has alleged a violation of a constitutional right. Lee alleges a plethora of constitutional rights violated by defendants' conduct surrounding his suspension. Although neither of the parties have addressed the law governing any of these claims, I have independently researched the law in an attempt to assess the sufficiency of plaintiff's allegations.
1. Due Process Claims
The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property. Board of Regents v. Roth, 408 U.S. 564, 569 (1972). A state or local employee will be entitled to certain procedural protections, e.g. notice and a hearing regarding adverse employment action, only if it is determined that his or her property or liberty interests have been impaired. Id. The nature of the hearing required, however, varies somewhat depending on the interest involved. If a public employee can demonstrate that he has a property interest in his employment, based on contractual, statutory or similar guarantees, he will be entitled to a hearing to challenge the sufficiency of any charges against him and seek reinstatement if the charges prove false. See Cleveland Board of Educ. v. Loudermill, 470 U.S. 532, 542 (1985). A hearing regarding an employee's liberty interest is warranted where he is charged with activities that impair his reputation, the accuracy of the charge is contested, there is some public disclosure of the charge, and it is made in connection with the termination of employment or some alteration of a right or status recognized by state law. See Paul v. Davis, 424 U.S. 693, 694 (1976).
a. Property interest
To have a property interest in a particular benefit, a person clearly must have more than an abstract need or desire for or unilateral expectation of that benefit; he must have a legitimate claim of entitlement to it. See Roth, 408 U.S. at 577. Property interests protected by the due process clause are created not by the Constitution but by "existing rules or understandings that stem from an independent source such as state law." Id. at 578. When state law provides that a public employee is terminable at will, that employee does not have a constitutionally protected property interest in continued employment.See Bishop v. Wood, 426 U.S. 341, 345-47 (1976).
Lee has alleged that he is "a public employee with permanent civil service status" but has articulated in no manner how the law guarantees his continued employment (e.g., by contract, statute, municipal ordinance, mutually explicit understanding) so as to create a legitimate entitlement as opposed to a mere expectation. The allegations concerning an alleged property interest are not sufficiently detailed to satisfy the heightened pleading standard that applies when a defendant asserts a claim of qualified immunity. Plaintiff, therefore, will be required to file a Schultea reply setting forth sufficient factual detail to raise a genuine issue concerning (1) defendants' deprivation of a property interest and (2) the unreasonableness in the defendants' belief that their conduct conformed to the constitutional standard in light of the information available to them and the clearly established law.
The reply is in the nature of a Rule 7(a) reply ordered by the court, and "must be tailored to the assertion of qualified immunity and fairly engage its allegations." Schultea, 47 F.3d at 1432-33. Greater detail is required than is required under Rule 8(a), and the court need not allow discovery unless it finds that plaintiff has supported his claim with sufficient precision and factual specificity to raise a genuine issue as to the illegality of defendant's conduct at the time of the alleged acts. Id. at 1434. plaintiff should heed these instructions in crafting his reply, for both this claim and any other claim for which a reply is ordered herein.
b. Liberty interest
Even absent a constitutionally protected property interest, a governmental employee may have a protected liberty interest in freedom from stigmatization. Wells v. Doland, 711 F.2d 670, 676 (5th Cir. 1983). A public employee's liberty interest is implicated when he suffers adverse employment action under circumstances that put his reputation, honor or integrity at stake. Paul v. Davis, 424 U.S. 693, 694 (1976);Goss v. Lopez, 419 U.S. 565 (1975); Rosenstein v. City of Dallas, 876 F.2d 392, 395 (5th Cir. 1989). This right exists when accusations impose "a stigma or other disability that foreclose freedom to take advantage of other employment opportunities." Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573 (1972). An individual facing such accusations is entitled to a hearing providing an opportunity to clear his or her name — not actual review of the termination decision.Rosenstein, 876 F.2d at 395. Failure to provide such a name-clearing hearing can give rise to monetary damages under § 1983. Id., citingOwen v. City of Independence, 445 U.S. 622, 633 n. 13 (1980).
To succeed on a § 1983 claim for the denial of a name-clearing hearing, the Fifth Circuit requires the employee to prove: (1) that he was discharged; (2) that defamatory charges were made against him in connection with the discharge; (3) that the charges were false; (4) that no meaningful public hearing was conducted pre-discharge; (5) that the charges were made public; (6) that the employee requested a hearing in which to clear his name; and (7) that the request was denied.Rosenstein, 876 F.2d at 395-96; Arrington v. County of Dallas, 970 F.2d 1441, 1447 (5th Cir. 1992).
"Discharge" must certainly contemplate other adverse employment action, pursuant to Supreme court precedent. Goss v. Lopez, 419 U.S. 565 (1975) (temporary suspension of student implicated liberty and property interests requiring procedural due process).
Lee claims that he was suspended from the police force for 120 days due to alleged criminal conduct, and that in conjunction with the suspension, the Mayor and Police Chief publicized the charges, which were of such a stigmatizing nature as to affect plaintiff's ability to secure future employment. He further alleges that at no time was he provided with a name-clearing hearing. However, he does not allege when or how he requested such a hearing. Plaintiff's liberty interest claim, although the strongest of his claims, then, does not satisfy the pleading standard of Schultea, and plaintiff must file a Shultea reply addressing in greater factual detail when and how he requested a name-clearing hearing prior to filing this lawsuit, and any factual circumstances that made it unreasonable for defendants to believe that they acted constitutionally when they denied him a name clearing hearing.
Plaintiff also alleges defamation/slander. These are not constitutional torts cognizable under § 1983. See e.g., Kerr v. Lyford, 171 F.3d 330 (5th Cir. 1999); Rosenstein v. City of Dallas, 876 F.2d 392, 397 (5th Cir. 1989) (an employee may not recover directly under § 1983 for slanderous statements made by his employer, but he is entitled under federal law to a hearing to clear his name if the statements were made in connection with termination of his employment).
2. Equal Protection Claim
The Equal Protection Clause, contained in the Fourteenth Amendment, directs that persons similarly situated should be treated alike. Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982). To state a claim for intentional discrimination under Title VII, Section 1983 or Section 1981, a plaintiff must allege that a state actor intentionally discriminated against the plaintiff because of membership in a protected class. See Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996); Washington v. Davis, 426 U.S. 229, 247-48, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976)).
It is difficult to discern from Lee's pleadings the precise nature of his equal protection claims. A liberal reading of his pleadings suggests that he alleges (1) his suspension was motivated, at least in part, by his race (and not merely by his being charged with criminal conduct, for which probable cause existed); and/or (2) that some unidentified race-neutral policy concerning employment action to be taken against officers charged with crimes is applied disparately based on race. Assuming this is a correct reading of the legal theories on which he relies, there are inadequate factual allegations concerning these charges. Plaintiff, therefore, will be required to file a Schultea reply setting forth in greater factual detail the circumstances supporting the allegation of discrimination.
3. 4th Amendment Right to Privacy
Lee alleges several times in his Complaint that his "Fourth Amendment right to privacy" was violated by defendants when they publicized the stigmatizing criminal charges against him. The particular right asserted here is the "individual interest in avoiding disclosure of personal matters," which is properly called the right to confidentiality. See National Treasury Employees Union v. U.S. Dept. of the Treasury, 25 F.3d 237, 242 (5th Cir. 1994) (citing Plante v. Gonzalez, 575 F.2d 1119, 1132 (5th Cir. 1978)). In addressing the merits of an individual's right to confidentiality claim, a court must weigh the government's interest in disclosure against the individual's privacy interest. Id. (citingWoodland v. City of Houston, 940 F.2d 134, 138 (5th Cir. 1991); Fraternal Order of Police, Lodge 5 v. City of Phila., 812 F.2d 105, 110 (3d Cir. 1987)).
The employee's expectation of privacy must be assessed in the context of his employment status and the information revealed. Id. at 243. A plaintiff who has no reasonable expectation of privacy does not have standing to sue in federal court. Id. Neither does he have a protectable privacy interest in terms of the substantive law. Id.
Whether a public employee's expectation of privacy with regard to a certain zone of personal information is reasonable depends, in part, upon society's established values and its expectations of its public servants, particularly in view of the employee's specific position and duties. Id. It is beyond dispute that police officers are in a position of trust that justifies heightened attention to ensure their law-abiding conduct and protect against abuse of their power. In turn, such employees must be said to have a diminished expectation of privacy in connection with alleged criminal conduct. In any event, the filing of criminal charges is a matter of public record, whether the charges are made against a public employee or a private citizen. Thus, there can be no real expectation of privacy concerning such charges.
For these reasons, plaintiff cannot state a claim for invasion of his privacy under the Fourth Amendment. His claim, that the manner in which the information was revealed was violative of his rights, is properly asserted as an alleged violation of his liberty interest under the due process clause of the Fourteenth Amendment.
4. 6th Amendment Right to Impartial Jury
Lee also alleges several times that the defendants' conduct has resulted in his being "tried in the media," depriving him of his Sixth Amendment right to an impartial jury. There are a number of justiciability problems with this claim. Taking judicial notice of the fact that plaintiff has, as yet, not been tried in state court on all charges against him, this claim is not ripe for adjudication, and should be dismissed without prejudice. Even were I not to dismiss it, I would abstain from hearing the claim based on the ongoing state criminal proceedings against plaintiff that will bear on this claim, in particular, and potentially on other claims discussed above.
See C. Wright A. Miller, 13A Federal Practice and Procedure § 3532.1 (West 1984 Supp. 1999).
For the foregoing reasons, accordingly,
IT IS ORDERED that the motion to dismiss the claim against defendants in their official capacity IS GRANTED, with leave for plaintiff to amend his complaint, if he can, to allege facts supporting a claim of municipal liability;
IT IS FURTHER ORDERED that defendants' motion to dismiss IS DENIED but motion for Schultea reply IS GRANTED with respect to (1) the Fourteenth Amendment due process claim based on a property and/or liberty interest; and (2) the Fourteenth Amendment equal protection clause claim, plaintiff shall file the Schultea reply by not later than June 16, 2000.
IT IS FURTHER ORDERED that defendants' motion to dismiss IS GRANTED with respect to plaintiff's Fourth and Sixth Amendment claims.