Opinion
Case No. 2:06cv738.
February 23, 2007
OPINION AND ORDER
Before the Court is the September 22, 2006 Memorandum of Plaintiff Linda G. Lowe (hereinafter "Plaintiff) in Support of Jurisdiction (Doc. 10). Defendants, Village of McArthur, Ohio, Mayor Robert L. Doddrill, Jr., and Village of McArthur Council Members Juanita McNickle, Thomas Reid, David Gill, Ralph Neal, Kim Wortman and Jerry Zinn, individually and in their official capacities (hereinafter collectively "Defendants"), filed a Memorandum Contra on September 29, 2006 (Doc. 11). Plaintiff filed a Reply Memorandum on October 10, 2006 (Doc. 15).
This matter is now ripe for review. For the reasons which follow, the Court concludes jurisdiction is appropriate in this matter.
A. FACTS
Plaintiff is a Captain with the Village of McArthur Police Department. (Doc. 2, ¶ 3). Plaintiff, having sustained a work related injury, returned to work part-time with restrictions. (Doc. 10)
Upon her return, Sergeant Ebersbach assigned Plaintiff the duties of a village mayor's court clerk on April 25, 2006 (hereinafter "April 25 Letter"). (Doc. 2, ¶ 7, Exh.) The April 25 Letter was not signed by Sergeant Ebersbach as the acting marshal. (Doc. 2, Exh. 2) On April 26, 2006, Plaintiff sent a typewritten note to Sergeant Ebersbach expressing concern that the work assignment consisted of the duties of a mayor's court clerk and not a law enforcement officer. (Doc. 2, Exh. 3) As such, Plaintiff questioned whether Sergeant Ebersbach mistakenly assigned the duties. (Doc. 2, Exh. 3) The same day, Plaintiff also sent a hand-written note to the mayor's court clerk offering assistance in the duties. (Doc. 2, Exh. 4)
In a letter dated April 28, 2006, Mayor Robert L. Dodrill, Jr. (hereinafter "Mayor") suspended Plaintiff for insubordination and failing to follow the instructions of a supervisor. (Doc. 2, Exh. 6) Plaintiff was suspended without a hearing or advance notice. (Doc. 2, ¶ 9)
On May 4, 2006, Plaintiff received a second letter (hereinafter "May 4 Letter") from Sergeant Ebersbach assigning her the duties of a mayor's court clerk. (Doc. 2, Exh. 7) The May 4th Letter was identical to the April 25 Letter except that Sergeant Ebersbach signed the letter as "Acting Marshal."
On May 17, 2006, Plaintiff submitted a letter to the Council members for the Village of McArthur appealing her suspension by the Mayor. (Doc. 2, Exh. 8) When Plaintiff initially failed to receive a response from the Village Council, she filed an administrative appeal in the Vinton County Court of Common Pleas in order to exhaust any potential administrative remedies. (Doc. 2, ¶ 12)
The Mayor subsequently scheduled a hearing on Plaintiff's suspension before the Village Council on July 5, 2006. (Doc. 2, ¶ 13). The Village Council voted to uphold the suspension. Plaintiff appealed the Village Council decision to the Vinton County Court of Common Pleas. (Doc. 2, ¶ 16)
On June 28, 2006, the Mayor ordered Plaintiff "to assume the responsibilities and duties of the Mayor's Court Clerk in full[.]" (Doc. 2, Exh. 9)
On August 30, 2006, Plaintiff filed the instant action alleging violations of her procedural and substantive due process rights pursuant to 42 U.S.C. 1983. Simultaneously, Plaintiff filed a Motion for a Preliminary and Permanent Injunction. On September 12, 2006, the Court conducted a settlement conference with the parties, however, settlement was not reached. The Court then ordered the parties to submit memoranda in support of subject matter jurisdiction.
II. ANALYSIS
"The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. As such, district courts shall have original jurisdiction in all civil actions arising under 42 U.S.C. § 1983, which provides:
[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . 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. However, whether the Court properly has § 1331 jurisdiction over a § 1983 claim depends on the plaintiff having had a constitutionally protected property right in continued public employment. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985). "Property interests are not created by the Constitution, `they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law. . . .'" Id., quoting Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972). Thus, to assert a valid § 1983 claim, Plaintiff must demonstrate, while acting under color of state law, Defendants deprived her of a right secured by the Constitution or laws of the United States. See Alkire v. Irving, 330 F.3d 802, 813 (6th Cir. 2003).
B. Procedural Due Process
The Fourteenth Amendment provides, in part, that "no State shall . . . deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. To establish a procedural due process claim pursuant to § 1983, Plaintiff must establish the following elements:
(1) she possessed a property interest protected by the due process clause of the Fourteenth Amendment, and
(2) she was deprived of this interest by the defendant without being afforded sufficient process.Hahn v. Star Bank, 190 F.3d 708, 716 (6th Cir. 1999).
The Court first turns to the issue of whether Plaintiff was deprived of a property interest. Defendants argue Plaintiff, as a village police officer, is an unclassified civil servant. As such, Defendants maintain case law establishes that unclassified civil servants do not have a property right to continued employment. See Vodila v. Clelland, 836 F.2d 231, 232 (6th Cir. 1987). In response, Plaintiff agrees that she is not a classified civil servant. Nonetheless, Plaintiff contends she does have a property interest in her employment as a village police office. In support, Plaintiff relies upon Velazquez v. Village of Bratenahl, 2003 Ohio App. Lexis 807 (8th App. Dist. 2003). Velazquez involved a Village of Bratenahl police officer who argued the Village violated his constitutional rights when it terminated his employment without a pre-termination hearing. The Velazquez court concluded the police officer had a property interest in his employment:
Plaintiff does not allege she was deprived of either a life or liberty interest. As such, the Court shall focus on whether Plaintiff was deprived of a property interest.
A public employee has a property interest in his public employment if state law gives him a right to continued employment. See Deoma v. City of Shaker Heights (1990), 68 Ohio App. 3d 72, and Jackson v. Kurtz (1979), 65 Ohio App.2d 152, 157-158 (both cases held that R.C. 124.34 gives classified public employees the right to continued employment except as provided therein). In Ohio, the termination of village police officers is governed by R.C. 737.19, which provides that village police officers may only be terminated for
* * * incompetence, gross neglect of duty, gross immorality, habitual drunkenness, failure to obey orders given them by proper authority, or for any other reasonable or just cause.
Courts have analogized the language in O.R.C. 737.19 governing the termination of village police officers to O.R.C. 124.34 which governs the tenure, reduction, suspension, removal, and demotion of classified civil servants. See Shaffer v. Village of West Farmington (1992), 82 Ohio App.3d 579, Stephen v. Village of Bamesville, 7th Dist. No. 97 BA 12, 1999 Ohio App. LEXIS 3922. In Loudermill, the United States Supreme Court held that O.R.C. 124.34 creates a property interest in continued employment for classified civil servants because such employees can only be terminated for cause. Loudermill, supra at 542. Similarly, because R.C. 737.19 allows the termination of village police officers only for just or reasonable cause, R.C. 737.19 confers a property interest in continued employment to the employee.
Upon consideration, the Court finds merit in the analysis set forth by the Velazquez court. Accordingly, the Court concludes Ohio law provides Plaintiff with a right to continued employment as a village police officer, and thus, a property interest in her employment.
The next issue to determine is whether the Defendants deprived Plaintiff of her property interest without being afforded sufficient process. Plaintiff may establish a § 1983 procedural due process claim through one of two methods:
(1) [by] demonstrating that she is deprived of property as a result of established state procedure that itself violates due process rights; or
(2) by proving Defendants deprived her of property pursuant to a `random and unauthorized act' and that available state remedies would not adequately compensate for the loss.Macene v. MJW, Inc., 951 F.2d 700, 706 (6th Cir. 1991).
Currently, the Court will focus on the second method, which occurs when state action is "random and unauthorized" and it is impossible or impractical to provide an adequate pre-deprivation procedure. Pursuant to this method, a state may only satisfy procedural due process with an adequate post-deprivation procedure. Parratt v. Taylor, 451 U.S. 527, 539 (1981); Macene, 951 F.2d at 706. A plaintiff must prove that the post-deprivation process afforded by the state is inadequate to right the wrong at issue. In this context, an "unauthorized" state action means that the official in question did not have the power or authority to effect the deprivation, not that the act was contrary to law. Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass'n, 442 F.3d 410 (6th Cir. 2006).
Plaintiff argues Defendants violated her due process rights because her suspension was a "random and unauthorized" state action. Moreover, the post-deprivation procedures are inadequate to satisfy due process. Plaintiff maintains the deprivation was unauthorized as the Mayor did not have the authority to discipline her. Instead, Plaintiff contends only the village marshall had the authority to discipline her. Further, Plaintiff argues the post-deprivation procedures were inadequate as there is no procedure in place to appeal a suspension initiated by a village mayor. Finally, Plainitff asserts the hearing held by the Village Council was inadequate as there is no authority for her to appeal to the Village Council.
In response, Defendants argue Plaintiff was afforded an opportunity to be heard on two separate occasions, first by the Mayor and then by the Village Council. Additionally, Defendants contend Plaintiff has two actions currently pending in Vinton County Court of Common Pleas, neither of which has been resolved.
O.R.C. § 737.19 sets for the powers and duties of a village marshall and states in relevant part:
(A) The marshal of a village has exclusive authority over the stationing and transfer of all deputies, officers, and employees within the police department of the village, under the general rules that the mayor prescribes.
(B) Except as provided in section 737.162 [737.16.2] of the Revised Code, the marshal of a village has the exclusive right to suspend any of the deputies, officers, or employees in the village police department who are under the management and control of the marshal for incompetence, gross neglect of duty, gross immorality, habitual drunkenness, failure to obey orders given them by the proper authority, or for any other reasonable or just cause.
If an employee is suspended under this section, the marshal immediately shall certify this fact in writing, together with the cause for the suspension, to the mayor of the village and immediately shall serve a true copy of the charges upon the person against whom they are made. Within five days after receiving this certification, the mayor shall inquire into the cause of the suspension and shall render a judgment on it. If the mayor sustains the charges, the judgment of the mayor may be for the person's suspension, reduction in rank, or removal from the department.
Suspensions of more than three days, reduction in rank, or removal from the department under this section may be appealed to the legislative authority of the village within five days from the date of the mayor's judgment. The legislative authority shall hear the appeal at its next regularly scheduled meeting. The person against whom the judgment has been rendered may appear in person and by counsel at the hearing, examine all witnesses, and answer all charges against that person.
At the conclusion of the hearing, the legislative authority may dismiss the charges, uphold the mayor's judgment, or modify the judgment to one of suspension for not more than sixty days, reduction in rank, or removal from the department.
Action of the legislative authority removing or suspending the accused from the department requires the affirmative vote of two-thirds of all members elected to it.
In the case of removal from the department, the person so removed may appeal on questions of law and fact the decision of the legislative authority to the court of common pleas of the county in which the village is situated. The person shall take the appeal within ten days from the date of the finding of the legislative authority.
* * *
O.R.C. § 737.162 is in applicable as applied to Plaintiff as it refers to a felony precluding or terminating employment in a law enforcement capacity.
The Court instructed the Plaintiff to file a memorandum in support of jurisdiction and, as such, the Court will construe the facts alleged in the Complaint in Plaintiff favor. In so doing, the Court concludes Defendants deprived her of property pursuant to a random and unauthorized act and that available state remedies would not adequately compensate for the loss. Defendants did not follow the procedures outlined in O.R.C. § 737.19(B) in suspending Plaintiff. First, she was not suspended by the village marshal, who is the party with the exclusive right to suspend Plaintiff. Instead, she was suspended by the Mayor. The Mayor did not have the authority to suspend. To the contrary, under the statute, the village mayor is the party vested with the duty of inquiring into the cause of the suspension and render a judgment on it. Additionally, Defendants failed to follow the statute as the village marshal failed to certify Plaintiff's suspension in writing, together with the cause for the suspension, to the Mayor.
Furthermore, there are no adequate post-deprivation procedures as there is no procedure in place to appeal a suspension initiated by a village mayor. O.R.C. 737.19(B) provides for appeals to the common pleas court for suspension which are more than three days. As such, there is no mechanism in place for Plaintiff to appeal a suspension which was handed down by the village mayor, and not the village marshall, and which was not certified, in writing, by the village marshall together with the cause for the suspension, to the village mayor.
Therefore, the Court concludes, construing the facts in the Complaint in Plaintiff's favor, there is subject matter jurisdiction on Plaintiff's procedural due process claim. As such, the Court declines to examine the issue of subject matter jurisdiction with respect to Plaintiff's substantive due process and First Amendment claims.
Accordingly, the September 22, 2006 Memorandum of Plaintiff in Support of Jurisdiction (Doc. 10) is hereby GRANTED.