Summary
acknowledging that city employee had protected property interest in continued employment and could proceed on allegations that he was denied procedural due process by not being given notice and an opportunity to be heard prior to being terminated
Summary of this case from City of Lauderhill v. RhamesOpinion
No. 93-0584.
March 16, 1994.
Appeal from the Circuit Court, Palm Beach County, Richard B. Burk, J.
Edward F. O'Hara, North Palm Beach, and Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., West Palm Beach, for appellant.
Matthew C. Russell, Riviera Beach, for appellee.
We reverse in part the final summary judgment entered in favor of the appellee in appellant's claim under 42 U.S.C. § 1983 against the City of Riviera Beach for his wrongful discharge in violation of his due process rights. While the trial court correctly determined that, based upon the record before it, appellant had a protectable property interest in continued employment, Hearn v. City of Gainesville, 688 F.2d 1328 (11th Cir. 1982), the trial court erred in determining that it lacked jurisdiction over the action because appellant had failed to exhaust his administrative remedies prior to filing suit. Exhaustion of administrative remedies is not a prerequisite to a section 1983 action. Patsy v. Florida Bd. of Regents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982). Further, appellant's claim that he was denied due process in that he was not given notice and an opportunity to be heard before he was deprived of his property interest in his job sufficiently alleges a claim under § 1983.
The trial court's reliance on Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), is misplaced. In Parratt the Supreme Court held that in a case where predeprivation due process was impossible because of the nature of the claim, a § 1983 action was not stated and the plaintiff must rely on a post-deprivation tort suit to vindicate his property loss. Here, however, predeprivation process was not only available but required. The trial court's conclusion that the appellant's state remedy of appeal was available and must be pursued, relying on Parratt, is simply another way of stating that administrative remedies must be exhausted, which Patsy has already rejected. Therefore, Tookes has properly alleged a claim for relief.
We affirm, however, the summary judgment on the defamation count, in that from the face of the complaint it appears that the action is without foundation. See Kribs v. City of Boynton Beach, 372 So.2d 195 (Fla. 4th DCA 1979); News-Press Pub. Co. v. Wisher, 345 So.2d 646 (Fla. 1977). Appellant argues that the City failed to raise the affirmative defense of privilege, but this defense appears both in the answer to appellant's initial complaint and in the City's motion for summary judgment which was filed after appellant's amended complaint. See Coral Ridge Properties, Inc. v. Playa Del Mar Ass'n, 505 So.2d 414, 417 (Fla. 1987) (a motion for summary judgment based on an affirmative defense need not be preceded by an answer in which the affirmative defense is pleaded).
GUNTHER, WARNER and POLEN, JJ., concur.