United States District Court, M.D. Alabama, Eastern Division
MEMORANDUM OPINION AND ORDER
A. Baker, United States Magistrate Judge.
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).
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. 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).
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).
BACKGROUND AND FACTS
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).
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).
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
SUMMARY JUDGMENT STANDARD OF REVIEW
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).
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)).
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).