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Smith v. City of Mobile

United States District Court, S.D. Alabama, Southern Division

September 26, 2017

MICHAEL SMITH, Plaintiff,
v.
CITY OF MOBILE, et al., Defendants.

          ORDER

          KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE

         The undersigned has considered the parties' briefing (Docs. 52 - 54) timely submitted in response to the Court's August 15, 2017 order (Doc. 51), which gave notice of intent to grant summary judgment under Federal Rule of Civil Procedure 56(f) in favor of all Defendants on the federal claims raised in Counts I and III of the complaint. Upon consideration, the undersigned finds that summary judgment is due to be granted in part for the reasons previously stated in the Court's August 15 order.

The Due Process Clause of the Fourteenth Amendment provides “nor shall any State deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. The Supreme Court's interpretation of this clause explicates that the amendment provides two different kinds of constitutional protection: procedural due process and substantive due process. Cf. Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 983, 108 L.Ed.2d 100 (1990). A violation of either of these kinds of protection may form the basis for a suit under section 1983. Id.

McKinney v. Pate, 20 F.3d 1550, 1555 (11th Cir. 1994) (en banc).

         Count I alleges that the Defendants deprived Smith of “his property right interest in his job as a county merit system employee…” (Doc 1 at 9, ¶ 52). As was explained previously, it has long been the law of this Circuit that “areas in which substantive rights are created only by state law (as is the case with…employment law) are not subject to substantive due process protection under the Due Process Clause because substantive due process rights are created only by the Constitution. As a result, these state law based rights constitutionally may be rescinded so long as the elements of procedural-not substantive-due process are observed.” McKinney, 20 F.3d at 1556. Thus, “an employee with a property right in employment is protected only by the procedural component of the Due Process Clause, not its substantive component. Because employment rights are state-created rights and are not ‘fundamental' rights created by the Constitution, they do not enjoy substantive due process protection.” Id. at 1560. See also Bell v. City of Demopolis, Ala., 86 F.3d 191, 192 (11th Cir. 1996) (per curiam) (McKinney “held that the alleged wrongful discharge of an employee by a state actor does not give rise to a substantive due process claim but instead implicates only procedural due process.”). Count III alleges that the Defendants deprived Smith “his due process right to a fair disciplinary hearing” (Doc. 1 at 10, ¶ 54), which also implicates only procedural due process. See Id. at 1559 (“Whether an individual…asserts that his particular hearing was not fair and impartial, he has raised only procedural due process concerns.”). Smith's brief confirms that he is only asserting procedural due process violations. (See Doc. 52 at 8 - 9).

It is axiomatic that, in general, the Constitution requires that the state provide fair procedures and an impartial decisionmaker before infringing on a person's interest in life, liberty, or property. More specifically, the Supreme Court has explained that a “tenured employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story” before a state or state agency may terminate an employee. In other words, the employee is entitled to “some kind” of pre-termination hearing. That hearing is not a mini-trial and “need not definitely resolve the propriety of the discharge. It should be an initial check against mistaken decisions-essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.”

McKinney, 20 F.3d at 1561 (citations omitted) (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 545-46 (1985)). See also Gilbert v. Homar, 520 U.S. 924, 929 (1997) (“In Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), we concluded that a public employee dismissable only for cause was entitled to a very limited hearing prior to his termination, to be followed by a more comprehensive post-termination hearing. Stressing that the pretermination hearing ‘should be an initial check against mistaken decisions-essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action, ' id., at 545-546, 105 S.Ct., at 1495, we held that pretermination process need only include oral or written notice of the charges, an explanation of the employer's evidence, and an opportunity for the employee to tell his side of the story, id., at 546, 105 S.Ct., at 1495.”).

The lack of a meaningful opportunity to be heard is at the core of a due process claim because “the deprivation by state action of a constitutionally protected interest in ‘life, liberty, or property' is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law.Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 983, 108 L.Ed.2d 100 (1990) (emphasis in original) (quoting Parratt v. Taylor, 451 U.S. 527, 537, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981)).
“Although the Due Process Clause generally requires notice and an opportunity to be heard before the government seizes one's property ... the Supreme Court ‘has rejected the proposition that ... the State [must always] provide a hearing prior to the initial deprivation of property.' ” Reams v. Irvin, 561 F.3d 1258, 1263 (11th Cir. 2009) (emphasis in original) (internal citation omitted) (quoting Parratt, 451 U.S. at 540- 41, 101 S.Ct. at 1915-16); see also Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984).
“[T]he feasibility of predeprivation procedures [i]s the central question in determining [whether predeprivation procedures must be provided].” Rittenhouse v. DeKalb Cnty., 764 F.2d 1451, 1455 (11th Cir. 1985); see also Carcamo v. Miami-Dade Cnty., 375 F.3d 1104, 1105 n.4 (11th Cir. 2004). So long as the State provides adequate post-deprivation remedies, “due process d[oes] not require pre-deprivation hearings where the holding of such a hearing would be impracticable, that is, where the deprivation is the result of either a negligent or an intentional deprivation of property.” McKinney v. Pate, 20 F.3d 1550, 1562-63 (11th Cir. 1994) (en banc).
Pre-deprivation process is impractical “where a loss of property is occasioned by a random, unauthorized act by a state employee, rather than by an established state procedure, ” because “the state cannot know when such deprivations will occur.” Hudson, 468 U.S. at 532, 533, 104 S.Ct. at 3203. These “established state procedure[s]” are typically established for the purpose of depriving citizens of their property. Rittenhouse, 764 F.2d at 1455.

Nat'l Ass'n of Boards of Pharmacy v. Bd. of Regents of the Univ. Sys. of Georgia, 633 F.3d 1297, 1316-17 (11th Cir. 2011)

         Here, the “established state procedures” for depriving certain Mobile County public employees, such as Smith, of their constitutionally protected property interests in their employment tenure, and for providing them both pre- and post-termination process, are found in Act No. 470, Local Acts of 1939, as amended by Act No. 2004-105, Ala. Acts 2004 (“Local Act 470”), and the Rules and Regulations of the Personnel Board (“Board Rules”).[1] More specifically, Board Rule 14.3(a) provides an “established state procedure” for pre-termination hearings.[2]Additional Board Rules provide an “established state procedure” for a post-termination appeal to the ...


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