Opinion
No. 1:00-cv-273
March 29, 2002
MEMORANDUM
Plaintiff John R. Collins, Jr. ("Collins") brings this action pursuant to 42 U.S.C. § 1983 and also asserts several state claims. In Count One of his complaint, Collins asserts a § 1983 claim that the defendants, the City of Chattanooga ("City") and W. Rodney Fowler ("Fowler"), caused a deprivation of his right to substantive and procedural due process as guaranteed by the Fourteenth Amendment to the United States Constitution. In Count Two, he asserts claims for wrongful discharge, wrongful suspension, and wrongful deprivation of his job at the appropriate rate of pay in violation of Article I, Section IX of the Tennessee Constitution and the Tennessee Human Rights Act (THRA), TENN. CODE ANN. § 4-21-301 et seq. Count Three is a claim for libel and slander under Tennessee law. In Count Four, he alleges the City is guilty of negligent hiring and failure to supervise its contract employee, Fowler. Plaintiff alleges in Count Five that Fowler is guilty of unauthorized release of his confidential medical records, the refusal to release his medical records to the qualified patient after release, the unauthorized practice of medicine and/or psychology, and medical malpractice for his evaluation of Collins, his conclusions, and release and comment on those conclusions. Count Five also alleges that the City is vicariously liable for all of Fowler's actions complained thereof.
Defendants move for summary judgment or, alternatively, move for judgment on the pleadings [Court File No. 17]. Defendants base the motion on the following grounds: (1) both defendants are entitled to a motion to dismiss with respect to all charges or claims against them which have not been brought within the applicable statute of limitations; (2) all claims should be dismissed which were previously included within the subject matter of case no. 98-0697, filed in the Chancery Court of Hamilton County, and case no. 99-1006, filed in the Chancery Court of Hamilton County, since both of those state cases have been dismissed and all issues or claims in those cases are barred by the doctrine of res judicata; (3) any claim by Collins relating to his pay level after reinstatement as a City police officer should be dismissed since Collins has filed a grievance with the City and failed to exhaust his administrative remedies; (4) Collins has no valid claim under 42 U.S.C. § 1983 against either defendant with respect to alleged deprivation of property rights relating to failure to commission Collins as a City police officer, failure to give him arrest power, failure to allow him to carry a gun, and failure to provide him with a police motor vehicle; (5) all state law tort claims against the City should be dismissed; (6) all claims against the City alleging a violation of civil rights under 42 U.S.C. § 1983 or alleging a violation of procedural due process should be dismissed; (7) the City is entitled to judgment on the pleadings and/or summary judgment in its favor with respect to Collins's claims under 42 U.S.C. § 1983 based upon the City's alleged negligent hiring and failure to supervise Fowler since Fowler is not an employee of the City and Collins has failed to allege "deliberate indifference;" and (8) Fowler did not engage in any action depriving Collins of due process or any intentional tort constituting libel or slander and Fowler is entitled to be dismissed as a party defendant.
Collins opposes the motion. After reviewing the record, the Court concludes the defendants' motion for summary judgment [Court File No. 17] is GRANTED IN PART and DENIED IN PART.
I. STANDARD OF REVIEW
A. Summary Judgment
The FEDERAL RULES OF CIVIL PROCEDURE provide that summary judgment will be rendered if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). The burden is on the moving party to conclusively show that no genuine issue of material fact exists, and the Court must view the facts and all inferences to be drawn therefrom in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); Morris v. Crete Carrier Corp., 105 F.3d 279, 280-81 (6th Cir. 1997); White v. Turfway Park Racing Ass'n, Inc., 909 F.2d 941, 943 (6th Cir. 1990); 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987). Once the moving party presents evidence sufficient to support a motion under Rule 56, the nonmoving party is not entitled to a trial merely on the basis of allegations. The nonmoving party is required to come forward with some significant probative evidence which makes it necessary to resolve the factual dispute at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986); White, 909 F.2d at 943-44; 60 Ivy Street, 822 F.2d at 1435. The moving party is entitled to summary judgment if the nonmoving party fails to make a sufficient showing on an essential element of the nonmoving party's case with respect to which the nonmoving party has the burden of proof. Celotex, 477 U.S. at 322-23; Collyer v. Darling, 98 F.3d 211, 220 (6th Cir. 1996).
The judge's function at the point of summary judgment is limited to determining whether sufficient evidence has been presented to make the issue of fact a proper jury question, and not to weigh the evidence, judge the credibility of witnesses, and determine the truth of the matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); 60 Ivy Street, 822 F.2d at 1435-36. The standard for summary judgment mirrors the standard for directed verdict. The Court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52; see also Lapeer County, Mich. v. Montgomery County, Ohio, 108 F.3d 74, 78 (6th Cir. 1997). There must be some probative evidence from which the jury could reasonably find for the nonmoving party. Anderson, 477 U.S. at 252; Bailey v. Floyd County Bd. Of Educ., 106 F.3d 135, 140 (6th Cir. 1997). If the Court concludes that a fair-minded jury could not return a verdict in favor of the nonmoving party based on the evidence presented, it may enter a summary judgment. Anderson, 477 U.S. at 251-52; Univ. of Cincinnati v. Arkwright Mut. Ins. Co., 51 F.3d 1277, 1280 (6th Cir. 1995); LaPointe v. UAW, Local 600, 8 F.3d 376, 378 (6th Cir. 1993).
The Court notes the inadequacy of Collins' response to the summary judgment motion pursuant to the FEDERAL RULES OF CIVIL PROCEDURE. Rule 56 provides:
When a motion for summary judgment is made and supported as provided in this rule [by the pleadings, depositions, answers to interrogatories, admissions, and affidavits], an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
FED. R. CIV. P. 56(e) (emphasis added). See also March v. Levine, 249 F.3d 464, 471 (6th Cir. 2001) (finding that "[w]hen a motion for summary judgment is made and supported by competent admissible evidence, the nonmovant may not rest on the pleadings, but must come forward with affidavits or other admissible evidence setting forth `specific facts showing there is a genuine issue for trial.' (citation omitted)" Id.).
Defendants support their motion for summary judgment with reference and citation to several exhibits, including deposition testimony from Collins and other witnesses. Collins's response includes no supporting materials at all. Instead, Collins relies on the allegations of his complaint. Collins's response is facially inadequate under Rule 56. Nevertheless, the Court shall examine Collins's claims in light of the arguments offered by the defendants.
II. FACTS
The record will suggest the following findings of fact if the allegations of the plaintiff's complaint are viewed in the light most favorable to Collins. The Court makes these findings of fact solely for the purposes of resolving the motion before it.
The City is a municipal corporation and is the public employer of Collins. During all times pertinent to this litigation, the City acted through its appointed and elected officials of the Chattanooga Police Department and other city agents. Fowler is a citizen of Hamilton County, Tennessee and acted as a contract employee of the City. He is being sued in his official and individual capacities.
On May 24, 1996, Collins, a police officer for the Chattanooga Police Department, was on routine patrol when he heard loud music on Curtis Street. Soonafter, he called the dispatcher of the Chattanooga Police Department to anonymously report the loud music. He was dispatched to the Harden family residence on Curtis Street to investigate. As he approached the residence, at least two members of the Harden family began a physical altercation with Collins. Police backup was called and the members of the Harden family, as well as other individuals in the yard, retreated into the residence. The police followed to arrest the Hardens and, as a result, Collins was injured. The Harden family later made a complaint against Collins to Lieutenant John Bradford, Collins's direct supervisor, who turned the matter over to Captain Charles Cooke, who reported the incident to the Internal Affairs Division.
On May 30, 1996, Collins testified in the Hardens' preliminary hearing in General Sessions Court. On cross examination, the defense attorney asked Collins if he knew who made the call about the loud noise. Collins answered, "No." Sergeant Jackie Williams of the Internal Affairs Division was present at the hearing and asked Collins to accompany him to his office. Sergeant Williams played an audio tape of the call that Collins made to the dispatcher on May 24. Collins admitted that he had made the call and, therefore, lied under oath in a court of law. Sergeant Williams notified the Hamilton County District Attorney's Office the following day.
On May 31, 1996, Collins was placed on administrative leave with pay. On June 14, 1996, Collins was terminated from the Chattanooga Police Department after an administrative hearing with Safety Director Ervin Dinsmore due to the incident with the Harden family and another incident involving an arrestee, Darius Higgins. Collins appealed his termination and, on October 21, 1996, had a hearing before a panel of City Council. For various reasons, the panel reinstated Collins to his position with the police department but suspended him for twenty-eight (28) days without pay. After his reinstatement, Collins served as a Chattanooga Police Officer without incident.
The Hamilton County District Attorney's Office requested the Tennessee Bureau of Investigation (TBI) to investigate perjury allegations against Collins. On January 26, 1997, Collins was indicted for aggravated perjury, a felony under Tennessee law, of which one element is that the perjured statement is material to the prosecution. Collins turned himself in at the TBI Office amidst what he alleges was a "media circus."
On January 29, 1997, Collins received notice from the Chattanooga Police Department of a hearing to be held regarding his indictment for a felony. The City Attorney's Office notified Collins's attorney that the City charter allows for suspension with or without pay of any employee indicted for a felony. On February 11, 1997, an administrative hearing was held with the Safety Director at which Collins's attorney argued that he could not be found guilty of a felony perjury charge because the false statement he made under oath was not material to the prosecution. Nevertheless, on February 15, 1997, Collins was placed on administrative leave without pay by the City only because he was charged with a felony. The action was taken in accordance with an established City ordinance.
Collins remained on administrative leave without pay during the pendency of his criminal case. After the Hamilton County District Attorney General recused himself, Jerry Estes ("Estes"), Bradley County District Attorney General, was appointed. Collins applied for pretrial diversion. On January 6, 1998, Estes offered to reduce the charge against Collins to a misdemeanor perjury offense and to grant his application for pretrial diversion. On February 9, 1998, Collins was placed on pretrial diversion for the misdemeanor perjury. One of the conditions of the diversion agreement required Collins to surrender his POST Commission (Police Officers Standards and Training Commission) directly to the Bradley Country District Attorney's Office for two years. Collins would effectively be prevented from working as a commissioned police officer due to the surrender. Notice was sent both to the POST Commission and to Chief of the Chattanooga Police Department, Jimmie Dotson ("Dotson").
On March 12, 1998, because there was no longer a felony charge against him, Collins requested reinstatement from Dotson. Collins received no response from the Chattanooga Police Department. On April 7, 1998, Collins's attorney notified Dotson of Collins's intent to sue if he was not reinstated within thirty (30) days. Two days later, Collins received notice from the POST Commission that the City had begun a decertification process. There is a dispute between the parties whether the diversion agreement required that Collins's POST Commission "certificate" or "certification" be surrendered. Neither party has presented the diversion agreement to the Court as an exhibit.
On July 14, 1998, Collins petitioned the Chancery Court of Hamilton County for a writ of mandamus. The writ issued that day commanding the City of Chattanooga and the Chattanooga Police Department to rule on the employment and backpay status of Collins. (See Exhibit 1, Motion for Summary Judgment).
On July 22, 1998, Collins received notice from the POST Commission that he had been decertified. On July 30, 1998, a hearing regarding Collins's re-employment was held with Dotson, and Shelley Parker ("Parker"), Legal Counsel for the City of Chattanooga. On August 28, 1998, Collins received a letter from Parker offering to allow Collins to reapply for a job with the City police department as a new employee. Collins rejected this offer on September 4, 1998. Collins remained suspended without pay.
On March 31, 1999, Collins received notification from Dotson that his employment was terminated effective February 16, 1997. A show cause hearing on the writ of mandamus was held on April 1, 1999. The parties announced the employment status of Collins and the court ordered the dismissal of the petition for mandamus as moot. (See Exhibit 2, Motion for Summary Judgment).
Collins requested from Estes that the provision requiring the surrender of his POST Commission be removed from the diversion agreement. On April 5, 1999, Collins received notice from Bradley County Assistant District Attorney Sandra Donaghy that Collins may reapply for his POST Commission as it was not the intent of Estes to prevent the re-employment of Collins with the City. Collins notified Dotson of this development.
Beginning May 6, 1999, the case of Harden v. Collins was tried in the United States District Court for the Eastern District of Tennessee. This case was brought by the Harden family against Collins and others as a result of the incident at their home on May 24, 1996. The jury returned a verdict for all defendants. The parties disagree on whether Collins was forced to defend himself at his own expense.
Collins appealed his termination by Dotson. On June 28, 1999, a new panel of the City Council heard the matter and unanimously voted to reinstate Collins on the condition that he receive his POST Commission. Based on statements at the hearing by Tony Crisp, Chairman of the POST Commission, and Parker, it was determined that Collins would be re-certified and reinstated after in-service training. Within a day or two, Collins reported to work and was then notified that he must again attend the Chattanooga Police Academy. He was also paid at the salary level of a "rookie" officer rather than the rate of pay he would have earned had he not been discharged. Defendants assert that Collins was paid at a greater rate of pay than that which he received when he was suspended. This pay increase was due to a pay structure increase that occurred during Collins's suspension and it was applicable to all police officers.
During his training at the academy sometime during the summer of 1999, Collins noticed newspaper clippings on the bulletin board which contained letters to the editor regarding his re-employment. The letters were underlined in red ink. Collins alleges that these letters were false and were posted to intimidate him, but he does not state particular facts nor has he submitted the letters to the Court.
Collins was required to submit to a psychological examination during the course of his training at the academy despite having done so the first time he went through the application process with the Chattanooga Police Department. The parties dispute the necessity of the psychological examination for the certification. Collins tested with Fowler, a professor at the University of Tennessee Chattanooga and contract employee of the City. Fowler administered the Minnesota Multi-Phasic Personality Inventory (MMPI) Test and the LEADR Test, a personality inventory designed to test law enforcement officers.
On August 13, 1999, Fowler, by memorandum, informed Dotson that Collins was not an appropriate candidate to be a police officer. The parties dispute whether Fowler stated that Collins was "violent and explosive." The academy instructors collected all weapons before advising Collins that he was being placed on administrative leave with pay. That evening on the 11:00 news, Channel 9, the local ABC affiliate, reported that Collins had "failed his psychological evaluation," that he had been fired, and that he was serving a probation sentence from a conviction. Collins asserts that these statements are false and malicious and were intentionally "leaked" to Channel 9 by persons in the Chattanooga Police Department or city government.
On August 18, 1999, Dotson gave written notification to Collins regarding his administrative leave with pay. Collins demanded the City give him access to his psychological tests for an independent evaluation. The City refused due to an alleged confidentiality agreement with the testing service provider. On August 19, 1999, Collins demanded his records from Fowler and provided a release but Fowler did not respond. Fowler has not communicated with Collins since August 13, 1999. The parties disagree as to whether Fowler is qualified under Tennessee law to perform personality tests or to diagnose mental disorders. See TENN. CODE ANN. § 38-8-106 (2000) (police applicant "must be certified . . . by a qualified professional in the psychiatric or psychological field"). Collins notified Dotson and the City Council that Fowler was not qualified and had wrongfully refused to release the psychological test results to Collins for independent evaluation.
During his administrative leave, which was supposed to be with pay, Collins was refused his pay, presumably by the City. Defendants do not specifically admit or deny this allegation.
Collins hired a private licensed psychologist, David Solovey ("Solovey"), to conduct an independent psychological evaluation. By letter dated September 13, 1999, Solovey found Collins to be qualified to be a police officer pursuant to § 38-8-106. On September 14, 1999, Collins filed a complaint in the Chancery Court of Hamilton County requesting injunctive relief ordering the City and Fowler to release all records relating to Collins's psychological evaluations. (See Exhibit 3. Motion for Summary Judgment). Collins notified the POST Commission, the City Council, the City's Mayor, and Chief of Police Dotson, of Solovey's finding that Collins was qualified to be a police officer. Collins claims that as of the date of filing his complaint, the defendants have continued to refuse to provide Collins with his own medical records. Defendants contend that all medical records have been sent to Collins. Further, the defendants submit the Agreed Order of Dismissal of Collins's complaint in chancery court. (See Exhibit 4 in Motion for Summary Judgment). The order requires Fowler to provide Collins with the records related to the psychological testing.
On September 17, 1999, the POST Commission met to consider Collins's application. The POST Commission discussed whether Fowler was qualified to conduct psychological testing. The matter was continued until their next meeting to allow the City to respond.
On September 21, 1999, Collins demanded that TV Channel 9 retract their story regarding Collins and to name their source. Channel 9 partially retracted the story, yet refused to broadcast that Fowler was not licensed to perform psychological evaluations. Collins asserts that the partial retraction by Channel 9 implied to the viewing audience that Collins failed a psychological exam.
On September 24, 1999, Collins made a motion to amend the lawsuit filed against the City and Fowler to request injunctive relief to force the City to release Collins's paychecks. Collins has not informed the Court of the outcome of this motion; however, the defendants state that no injunctive relief was ever awarded to Collins in the chancery court suit.
On October 27, 1999, the City requested that the POST Commission postpone the Collins hearing scheduled for October 29, 1999 to November 19, 1999 because they had hired a psychologist, Pam Auble ("Auble"), to examine Collins. On November 8, 1999, Collins's attorney provided Auble with background information on Collins's case as well as Solovey's records and reports. Auble never responded. Auble consulted with Fowler but not with Solovey. She concluded that her test results were invalid, as were Solovey's, because Collins "tested too well." On November 18, 1999, Auble notified Dotson that Collins was not qualified to receive a POST Commission. That same day, the POST Commission received notice from Estes that Collins may seek his POST Commission without violating his pre-trial diversion agreement.
On November 19, 1999, the POST commission convened to consider Collins's application. Parker opposed reinstatement of Collins's POST Commission despite earlier assurances the City would not take a position on the matter. Parker presented a letter from Hamilton County District Attorney General Bill Cox which stated that Cox could not use Collins as a witness in court. The City had not presented this letter to Collins before this date despite having it for several months. Nevertheless, the POST Commission voted unanimously to reinstate Collins's POST commission.
On December 10, 1999, Dotson wrote a letter to the POST Commission asking them to reconsider their vote. On December 15, the POST Chairman informed Dotson in writing that Collins's POST Commission had been reinstated. However, at the request of the City, the matter was placed on the POST Commission's agenda for January 21, 2000. Notification was not sent to Collins or his attorney. On January 14, 2000, Collins's attorney wrote letters to the City Council, the Mayor, and the Chief of Police requesting enforcement of Collins's reinstatement per the action taken by City Council on June 28, 1999. When plaintiff's counsel learned of the impending POST Commission hearing two days before it was scheduled by a newspaper reporter, he immediately protested the hearing. The next day, Collins's attorney and Parker agreed to continue the hearing in an effort to resolve the dispute.
On February 17, 2000, Parker agreed not to pursue an objection to the POST Commission's reinstatement of Collins and to return Collins to work as a City police officer. On February 21, 2000, Collins was advised that he would be given a non-commissioned job in the property division of the Police Department. He reported to work on February 25, 2000. Police Chief Larry Lyda advised Collins that he would never receive a commission, a badge, or a gun despite the position of the POST Commission. From this date, Collins continued to be paid at entry-level, "rookie" salary.
Sometime after this date and after much wrangling with the City's bureaucracy and with personal assistance from Councilman Don Eaves, Collins received his backpay. However, the backpay was calculated at the entry-level salary rather than at the level to which he was reinstated. Both the City Personnel Department and the City Police Department have insisted that it is not their organization's responsibility to make adjustments to Collins's pay rate.
Collins filed a grievance with the City pursuant to the administrative grievance process in an attempt to adjust his rate of pay. Collins was advised that he must request a meeting with City Council and the Personnel Director to discuss the matter. Defendants assert that Collins has yet to exhaust his administrative remedy.
On August 7, 2000, Collins instituted this action in the United States District Court.
III. ANALYSIS
A. Statute of Limitations: 42 U.S.C. § 1983
The Court must first address the threshold issue of statute of limitations. Defendants argue all claims against them which have not been brought within the applicable statute of limitations must be dismissed. The Court agrees that a certain portion of the complaint is time-barred by the statute of limitations.
42 U.S.C. § 1983 does not contain a statute of limitations. The Supreme Court mandates that where Congress does not specify a period of limitations in a federal statute, the federal courts must select and apply the most closely analogous state statute of limitations. North Star Steel Co. v. Thomas, 515 U.S. 29, 33-34 (1995); Wilson v. Garcia, 471 U.S. 261 (1985); see also Kuhnle Brothers, Inc. v. County of Geauga, 103 F.3d 516, 519 (6th Cir. 1997). The applicable statute of limitations in Tennessee is one year. TENN. CODE ANN. § 28-3-104(a)(3) (2000). Section 28-3-104(a)(3) provides that civil actions brought under federal civil rights acts shall be commenced within one year after the cause of action accrues. Merriweather v. City of Memphis, 107 F.3d 396, 398 (6th Cir. 1997); Sevier v. Turner, 742 F.2d 262, 272 (6th Cir. 1984). In § 1983 actions, federal law governs when a cause of action accrues. Collard v. Kentucky Bd. of Nursing, 896 F.2d 179, 183 (6th Cir. 1990). A cause of action accrues when "the plaintiff knows or has reason to know of the injury which is the basis of his action. A plaintiff has reason to know of his injury when he should have discovered it through the exercise of reasonable diligence." Sevier, 742 F.2d at 273. In his pleadings, Collins complains of a series of acts that occurred as early as May 1996. He has been aware of the alleged injuries that are the bases for his cause of action since that date.
Collins, however, alleges a continuing violation of his rights in an attempt to toll the statute of limitations. Although the continuing violation doctrine applies to § 1983 actions, courts have been extremely reluctant to apply it outside of the context of Title VII or employment discrimination cases. LRL Properties v. Portage Metro Housing Authority, 55 F.3d 1097, 1105 n. 3 (6th Cir. 1995); McGregor v. Louisiana State Univ. Bd. of Supervisors, 3 F.3d 850, 866 n. 27 (5th Cir. 1993) (citing cases). Collins alleges that the City has engaged in a series or discriminatory acts related to his employment and rate of pay that constitute a deprivation of his constitutional rights to procedural and substantive due process under the Fourteenth Amendment. For the Court to apply the continuing violation doctrine, Collins must show "evidence of present discriminatory activity giving rise to a claim of a continuing violation" or a "policy of discrimination." See LRL Properties, 55 F.3d at 1105-06; Dixon v. Anderson, 928 F.2d 212, 216 (6th Cir. 1991). There are two recognized exceptions to the rule that the statute of limitations is triggered by an event that "should have alerted the average lay person to protect his rights." Conlin v. Blanchard, 890 F.2d 811, 815 (6th Cir. 1989) (internal quotations omitted); see Dixon, 928 F.2d at 216. The first exception is where there is "some evidence of present discriminatory activity giving rise to a claim of a continuing violation," such as where an employer violates the law when it distributes unequal pay for equal work each pay period. Id. at 216. The second exception is found only where there is a "continuing over-arching policy of discrimination." Id. at 217 (internal quotations omitted).
By his alleged facts, Collins can establish present discriminatory activity giving rise to a claim of continuing violation in that the City has engaged in a series of discriminatory acts regarding Collins's employment, suspension, and rate of pay. The continuing violation by the City dates back to the June 28, 1999, decision of the City Council to reinstate Collins. Accordingly, the Court will not consider, for the purpose of analyzing Collins's § 1983 action, any acts or events by the defendants that occurred prior to June 28, 1999.
There is no need for the Court to determine the statute of limitations period for Collin's remaining claims. The City is immune from liability on the state law tort claims. The Court declines to exercise supplemental jurisdiction over any claims against Fowler. The Court's analysis of these issues follows below.
B. Procedural Due Process
The Due Process Clause of the Fourteenth Amendment protects life, liberty, and property. Collins does not claim that he has been deprived of a recognized life or liberty interest. Collins claims he has a property interest in his employment and alleged right to backpay. Contractual rights are a species of property within the meaning of the Due Process Clause. Perry v. Sindermann, 408 U.S. 593, 601-02 (1972); Charles v. Baesler, 910 F.2d 1349, 1352 (6th Cir. 1990).
The Due Process Clause does not prevent every deprivation by the state of an individual's right or interest in property. Only those deprivations carried out without due process of law are actionable under 42 U.S.C. § 1983. Zinermon v. Burch, 494 U.S. 113, 125 (1990); Christopher v. Kukulinsky, 61 F.3d 479, 485 (6th Cir. 1995). The Court applies a two-step test in its analysis of procedural due process claims. The Court must determine: (1) whether a constitutionally protected property interest exists; and (2) whether the deprivation of this property interest occurred without adequate process. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-41 (1985); Buchanan v. Apfel, 249 F.3d 485, 490 (6th Cir. 2000), Pusey v. City of Youngstown, 11 F.3d 652, 656 (1994). The touchstone of procedural due process is the fundamental requirement that an individual be given the opportunity to be heard ma meaningful manner. Howard v. Grinage, 82 F.3d 1343, 1349 (6th Cir. 1996).
Collins must first allege and be able to demonstrate that he has been deprived of a property right. Based on the extensive factual allegations in the Complaint, Collins has identified two potential property rights of which he claims to have been deprived: the previous job position he had as a police officer with the Chattanooga Police Department and its attendant benefits, and his alleged right to back pay at a proper rate or salary level. The defendants argue — and Collins concedes — that there is no state or federal law which guarantees to Collins any right to be given a particular law enforcement job with commission, arrest powers, a weapon, and police vehicle. At most, these are employee benefits that do not come within the protection of § 1983. Baesler, 910 F.2d 1349. The § 1983 claim that Collins has been deprived of procedural due process with regard to his desire to be assigned to a particular job within the Police department and be commissioned police officer with the authority to arrest persons, carry a firearm, and operate a police vehicle will be denied because Collins has not shown that he has a constitutionally protected property interest.
The other property right to which Collins stakes claim is his back pay in light of the June 28, 1999 decision by the City Council to reinstate him with back pay. Assuming arguendo that Collins has a legal entitlement to this back pay, the procedural due process claim will be denied because Collins cannot meet his burden of showing the second element of the due process test. The process has Collins received is constitutionally sufficient. The Court finds that Collins received adequate notice before any actions were taken that affected his back pay and pay rate, and he had numerous opportunities to be heard. By his own admission, Collins is still receiving procedural due process from the City in that he is currently utilizing the City's administrative grievance procedure.
Accordingly, the defendants' motion is for summary judgment will be granted and the § 1983 claims based on procedural due process in Count One of the plaintiff's complaint will be dismissed with prejudice.
In response to the defendants' motion to dismiss the procedural due process claims [Court File No. 23, pp. 5-6], Collins refers to a recent Supreme Court case where a homeowner was allowed to assert an equal protection claim as a "class of one." Village of Willowbrook v. Olech, 528 U.S. 562 (2000). Village of Willowbrook is an equal protection case and does not involve procedural due process. It is inapposite to the due process claims asserted by Collins in the present case. By citing Village of Willowbrook, Collins seems to erroneously imply that he has an equal protection claim. The Court will not address the purported equal protection claim because Collins did not plead it in his complaint. The first time Collins ever raised an issue about a possible violation of his constitutional right to equal protection is in his response to the defendants' summary judgment motion. Collins does not have an equal protection claim before the Court in his pleadings.
Collins also discusses his procedural due process claim in terms of the defendants acting with malice and having an intent to harass him. In analyzing the procedural du process claim, it is immaterial whether the defendants may have acted maliciously or with an intent to harass Collins. Procedural due process claims do not implicate the egregiousness of the action itself, but only the issue of whether the process accorded to Collins was constitutionally sufficient. Howard, 82 F.3d at 1349-50. This Court concludes that the process accorded to Collins was sufficient to satisfy the requirements of procedural due process because Collins received reasonable notice and a fair opportunity to be heard on his complaints and demands against the City.
C. Substantive Due Process
The real thrust of Collins § 1983 claim is that his right to substantive due process has been violated. In his response [Court File No. 23], Collins contends that the City and Fowler are responsible for a series of acts or chain of events whereby Collins has been subjected to intentional, malicious harassment.
Substantive due process claims are generally divided into two categories: (1) deprivations of a particular constitutional right; and (2) actions by government officials which "shock the conscience." Buchanan, 249 F.3d at 491; Valot v. Southeast Local School Dist. Bd. of Educ., 107 F.3d 1220, 1228 (6th Cir. 1997); Pusey v. City of Youngstown, 11 F.3d at 656. Substantive due process is intended to prevent government officials from abusing their power, or employing is as an instrument of oppression, regardless of the fairness of the procedures used. Lewis, 523 U.S. at 840; Daniels v. Williams, 474 U.S. 327, 331 (1986); Howard, 82 F.3d at 1349-50. The Supreme Court is very reluctant to expand the concept of substantive due process because "guideposts for responsible decisionmaking in this uncharted area are scarce and open-ended." Collins v. Harker Heights, 503 U.S. 115, 125 (1992); see also Lewis, 523 U.S. at 842. The doctrine of judicial self-restraint requires this Court to exercise the utmost care whenever it is asked to break new ground in this field in applying the "shock the conscience test." Collins, 503 U.S. at 125.
Collins does not plead that he has been deprived of a particular right guaranteed by the United States Constitution, other than due process. Consequently, the Court focuses its attention on the narrow question of whether the actions of the City and Fowler which are not time-barred by the statute of limitations "shock the conscience" and are so arbitrary, so oppressive that they rise to the level of a deprivation of substantive due process cognizable as a violation of the Due Process Clause in the Fourteenth Amendment. After reviewing the record, the Court concludes that the defendants are entitled to summary judgment and the substantive due process claim asserted pursuant to 42 U.S.C. § 1983 will be dismissed with prejudice. Based on the proof and facts in the record, a rational, objective jury could not reasonably find that the defendants can be held liable on a substantive due process theory.
The defendants' actions do not shock the conscience of the Court. Courts are generally reluctant to apply this standard to actions outside the realm of physical abuse. See Mansfield Apartment Owners, 988 F.2d at 1478; Braley v. City of Pontiac, 906 F.2d 220, 226 (1990). Moreover, courts usually reject attempts to expand the protection to claims involving property interests in employment. Sutton v. Cleveland Bd. of Educ., 958 F.2d 1339, 1350 (6th Cir. 1992) (holding no substantive due process protection for state-created right to tenured position); Charles, 910 F.2d at 1355 (holding no substantive due process protection for state-created employment promotion rights). The City's alleged denial of backpay at the rate demanded by Collins and the alleged failure or deliberate refusal to comply with demands for backpay deprivation of plaintiff's backpay simply is not shocking enough to rise to the level necessary for substantive due process protection.
The only deprivation of a right Collins can arguably show is that the City has denied his demand for a specific amount of backpay allegedly owed to him. This right, however, is not protected by substantive due process. The substantive component of the Due Process Clause is "not concerned with the garden variety issues of common law contract." Charles, 910 F.2d 1349) (holding that fire department captain did not have a substantive due process right to promotion); see also Mansfield Apartment Owners v. City of Mansfield, 988 F.2d 1469, 1477 (6th Cir. 1993). Collins's right to the correct rate of pay (assuming Collins can establish the right) does not rise to the level of "fundamental" interests protected by substantive due process. Id.
Furthermore, even if we assume arguendo that this is a substantive due process right, there has been no deprivation of that right by the City. The City need show only a "reasonable justification in the service of a legitimate governmental objective," Lewis, 523 U.S. at 846, or a rational basis for its action. Mansfield Apartment Owners, 988 F.2d at 1477. The City has demonstrated that there has been an intervening change or modification in the police department's salary structure such that Collins is now being paid a greater salary than the amount of pay he would have received had he been reinstated to his previous pay level in effect at the time he was suspended from duty. The Court finds that this constitutes a reasonable justification.
Accordingly, the defendants' § 1983 claims predicated on the theory of a deprivation of substantive due process as asserted in Count One of the complaint will be dismissed.
D. State Law Tort Claims
Defendants move to dismiss all state law tort claims against the City under Counts Two, Three, Four, and Five of the plaintiff's complaint on the ground that City is a immune from suit under the Governmental Tort Liability Act ("GTLA"). See TENN. CODE ANN. § 29-20-101 et seq. (2000). Collins concedes that the City has immunity on the state law tort claims. Accordingly, the tort claims in Count Two, Count Three, Count Four, and Count Five, as they relate to the City, will be dismissed with prejudice.
E. Res Judicata and Collateral Estoppel
The plaintiff filed two suits in the Chancery Court of Hamilton County (See Exhibit 1 and 3, Motion for Summary Judgment). Defendants argue all claims should be dismissed which were previously included within the subject matter of case no. 98-0697, filed in the chancery court of Hamilton County, and case no. 99-1006, filed in the chancery court of Hamilton County, since both of those cases have been dismissed and all issues or claims in those cases are barred by the doctrine of res judicata. Although the defendants base their argument on the doctrine of res judicata, they also implicate the doctrine of collateral estoppel. The Court will analyze both claim and issue preclusion of these prior actions. The Court concludes that case no. 98-0697 should not be given any preclusive effect. Case no. 99-1006 will be given preclusive effect to the extent of the parties' intent.
This Court first determines what effect, if any, the previous Chancery Court judgments have on the plaintiff's subsequent federal court action. The Full Faith and Credit Act, 28 U.S.C. § 1738, requires the federal courts to give the prior adjudication the same preclusive effect it would have under the law of the state whose court issued the judgment. See Migra v. Warren City School Dist., 465 U.S. 75, 81 (1984); Allen v. McCurry, 449 U.S. 90, 96 (1980). The plaintiff's federal suit is subject to whatever preclusive effect the chancery court judgments would have under Tennessee law.
The Tennessee Supreme Court described res judicata and collateral estoppel as follows:
The doctrine of res judicata bars a second suit between the same parties or their privies on the same cause of action with respect to all issues which were or could have been litigated in the former suit. Collateral estoppel operates to bar a second suit between the same parties and their privies on a different cause of action only as to issues which were actually litigated and determined in the former suit.Goeke v. Woods, 777 S.W.2d 347, 349 (Tenn. 1989) (quoting Massengill v. Scott, 738 S.W.2d 629, 631 (Tenn. 1987)).
A party who wishes to assert res judicata or collateral estoppel must show that "1) the judgment in the prior case was final and concluded the rights of the party against whom the defense is asserted, and 2) both cases involve the same parties, the same cause of action, or identical issues." Richardson v. Tennessee Bd. of Dentistry, 913 S.W.2d 446, 459 (Tenn. 1995) (citing Scales v. Scales, 564 S.W.2d 667, 670 (Tenn.App. 1977). The doctrines apply "only if the prior judgment concludes the rights of the parties on the merits." Id.; see A.L. Kornman Co. v. Metropolitan Gov't of Nashville Davidson County, 391 S.W.2d 633, 636 (1965). Furthermore, res judicata does not bar a subsequent action on rights that had not yet accrued or when intervening events have altered the parties' legal rights or relationships. White v. White, 876 S.W.2d 837, 839-40 (Tenn. 1994).
Case no. 98-0697 is a petition for writ of mandamus brought by plaintiff to force the City to take action on Collins's employment status and, ultimately, was dismissed as moot. The mandamus action and the case at bar do not involve the same cause of action nor the same issue to be litigated. Furthermore, other actions and events have occurred since case no. 98-0697 was dismissed that affect the parties legal rights and relationship. Accordingly, the Court finds that case no. 98-067 does not bar any of plaintiff's claims nor does it preclude litigation of any issues in the instant case.
Case no. 99-1006 is a complaint filed by Collins against the defendants with the sole prayer for relief being the release of the his medical records relating to the psychological evaluation conducted by Fowler. Several factual issues were raised in that complaint, many of which are allegations in the instant case that form the basis for the claims asserted in Count Five. However, case no. 99-1006 was dismissed with prejudice by an agreed order of dismissal entered on March 16, 2000 (See Exhibit 4, Motion for Summary Judgment) on the condition that Fowler provide the records requested by Collins. This agreed order of dismissal is essentially a consent judgment that did not involve a contest or decision on the merits. This judgment resulted from a basic contractual agreement of the parties and its preclusive effect can only be determined by the intent of the parties. See 18 CHARLES ALAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 4443 (1981). In the briefs, there is no argument on the intent of the parties relating to the consent judgment. The Court concludes it was the clear intent of the parties, from the face of the agreed order of dismissal, to preclude any claims the plaintiff may have against Fowler related to his failure to release the medical records to Collins.
The Court finds that case no. 99-1006 bars the plaintiff's claim against Fowler for failure to release medical records as stated in Count Five and this claim will be dismissed. The remaining claims in Count Five — unauthorized release of confidential medical records, unauthorized practice of medicine and/or psychology, and medical malpractice — are not precluded by either the doctrines of res judicata or collateral estoppel.
F. Supplemental Jurisdiction
The only remaining claims in this suit are those state law claims against Fowler. The Court must next determine whether it will exercise supplemental jurisdiction over these claims. Federal district courts may decline to exercise subject matter jurisdiction over a state law claim if the district court has dismissed all claims over which it has federal jurisdiction. See 28 U.S.C. § 1367(c). Section 1367(c) is a codification of the common law doctrine which provided for federal district court discretion as to whether to exercise supplemental jurisdiction, formerly known as pendent jurisdiction, as expressed in United Mine Workers v. Gibbs, 383 U.S. 715 (1966), and its progeny. See Musson Theatrical, Inc. v. Federal Express Corp., 89 F.3d 1244, 1254-55 (6th Cir. 1996). The exercise of supplemental jurisdiction over state law claims depends on the weighing and balancing of judicial economy, convenience, fairness, comity, and the undesirability of federal courts needless ly deciding state law issues. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988); Musson, 89 F.3d at 1254.
The general rule is that when all federal claims are dismissed before trial and the Court lacks federal question jurisdiction under 28 U.S.C. § 1331, the supplemental state claims should either be dismissed or remanded to state court if the case was removed. United Mine Workers, 383 U.S. at 726; Saglioccolo v. Eagle Ins. Co., 112 F.3d 226, 233 (6th Cir. 1997); Musson, 89 F.3d 1254. After weighing and balancing the factors of judicial economy, convenience, fairness, comity, and the undesirability of federal courts to needlessly decide what are purely matters of Tennessee law, the Court DECLINES to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c)(3). Collins's remaining state claims against Fowler will be dismissed without prejudice.
An order will enter.