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Lewis v. McCall

United States District Court, M.D. Alabama, Eastern Division

December 6, 2017

MORRIS LEWIS, et al., Plaintiffs,
HUGH B. MCCALL, et al., Defendants.


          David A. Baker, United States Magistrate Judge.

         This case arises out of claims by Plaintiffs Morris Lewis and Lewis Transportation (collectively referred to hereinafter as “Lewis”) that the Defendants have engaged in discriminatory assignments of tow-truck jobs and have ultimately removed Lewis Transportation from the rotations list for such assignments. The following are named as Defendants: Hugh B. McCall, the Director of the Alabama Department of Public Safety (“Department”); Post Commander Sergeant McWaters; Lieutenant Suzanne Capps; Captain Ron Short; and Major Kerry Chapman. Defendant McCall is sued only in his official capacity while the remaining defendants are sued both their individual and official capacities. Lewis brings claims for denial of equal protection (Counts One and Two) and denial of procedural due process (Count Three).

         Lewis's Complaint is the operative pleading. (Doc. 1). Therein, Lewis seeks to state federal claims arising out of both the Due Process and Equal Protection Clauses of the Fourteenth Amendment, by and through the remedial vehicle of 42 U.S.C. § 1983.[1] Before the court are the following motions: Lewis's Motion for Partial Summary Judgment as to Defendants Short and McWaters (Doc. 72); Defendants Motion for Summary Judgment (Doc. 73); and Defendants Short and McWaters's Motion to Strike Plaintiffs' Motion for Partial Summary Judgment (Doc. 78).


         Subject matter jurisdiction over Lewis's federal claims is conferred by 28 U.S.C. § 1331. The parties do not dispute venue or personal jurisdiction, and there are adequate allegations in Lewis's Complaint to support both. On March 24, 2017, the parties consented to Magistrate Judge Jurisdiction for all matters pursuant to Rule 73, Fed. R. Civ. P., and 28 U.S.C. § 636(c), and an order was entered reassigning the case to the undersigned as the presiding judge. (Docs. 51-53).


         Morris Lewis, an African-American male, owns Lewis Transportation, a towing service contractor. (Doc. 1 at ¶¶ 1-2, 10, 17, and 20). Lewis has alleged that, with respect to the assignment of tow truck jobs, “the State of Alabama by and through individual actors under color of state law continue to violate Lewis' constitutional rights to be free of race discrimination, arbitrary/capricious decisions and deprivation of procedural due process.” (Doc. 1 at ¶ 11). According to Lewis, “[t]he State of Alabama establishes rules and regulations for placement on the [assignment] list and requirements to stay on the list.” (Id. at ¶ 34). The Defendants, who are members of the Department and collectively identified by Lewis as the Alabama State Troopers, “are the sole assignors of Tow truck Activities on Alabama interstate, county and state roads.” (Id. at ¶ 10).

         On June 25, 2014, Defendant Short, in his capacity as Trooper G Commander of the Alabama State Troopers, sent a letter to Lewis notifying him “that your company is being removed from the Alabama Department of Public Safety's Rotation Wrecker System … due to failing to comply with rules and regulations listed in the Towing and Recovery Services Manual.” (Doc. 73-1 at 1). On June 27, 2014, Lewis, by counsel, requested a formal hearing on the removal. (Doc. 73-2). After the hearing, Defendant Short informed Lewis that he could reapply for the wrecker list on October 1, 2014, and Lewis testified that he submitted his application on December 1, 2014. (Doc. 73-4 at 26). Once an application has been submitted by a wrecker company for inclusion on a list, no set amount of time is prescribed for consideration of an application and review may vary from one to six months, depending on the number of applications pending and the complexity of inspections to be completed in support of the application. (Doc. 73-6 at 5-6).

         Lewis filed his Complaint in this Court on February 12, 2015, alleging counts pursuant to 42 U.S.C. § 1983, two of which were for violations of Equal Protection and one count of denial of Procedural Due Process. At the hearing before this Court on August 15, 2017, counsel for Plaintiff specifically stated that he was not pursuing the claims of Equal Protection. Accordingly, Counts I and II are due to be dismissed. The remaining Count for Procedural Due Process alleged that the Defendants “removed plaintiff from the correct order of the list and subsequently completely from the list.”


         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In ruling on a motion for summary judgment, the Court construes the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). However, when faced with a “properly supported motion for summary judgment, [the nonmoving party] must come forward with specific factual evidence, presenting more than mere allegations.” Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997).

         Summary judgment is mandated “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “Summary judgment may be granted if the non-moving party's evidence is merely colorable or is not significantly probative.” Sawyer v. Southwest Airlines Co., 243 F.Supp.2d 1257, 1262 (D. Kan. 2003) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986)).

         “[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249. “Essentially, the inquiry is ‘whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.'” Sawyer, 243 F.Supp.2d at 1263 (quoting Anderson, 477 U.S. at 251-52).

         IV. ...

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