Hughes v. Whitmer, 81-4230-CV-C-5.
| Decision Date | 11 February 1982 |
| Docket Number | No. 81-4230-CV-C-5.,81-4230-CV-C-5. |
| Citation | 537 F. Supp. 93 |
| Parties | William E. HUGHES, Plaintiff, v. Alan S. WHITMER, Defendant. |
| Court | U.S. District Court — Western District of Missouri |
Alex Bartlett, Bartlett & Venters, P.C., Jefferson City, Mo., for plaintiff.
Preston Dean, Asst. Atty. Gen., Jefferson City, Mo., for defendant.
The plaintiff, a member of the Missouri State Highway Patrol, brings this action against the defendant, the Superintendent of the Missouri State Highway Patrol, seeking injunctive relief against alleged violations of his constitutional and civil rights. In particular, the plaintiff alleges that his transfer from one state highway patrol troop to another troop by order of the defendant violated his First and Fourteenth Amendment rights and rights guaranteed under Sections 1983, 1985, 1986 and 1988 of Title 42 of the United States Code.
At the conclusion of a two-day bench trial, the Court entered its order preliminarily enjoining the defendant from transferring the plaintiff to another troop. The parties agreed that the evidence submitted at the preliminary injunction hearing would constitute the basis for any permanent relief. On review of the evidence and the briefs submitted, the Court permanently enjoins the defendant from issuing his October 16, 1981 order transferring the plaintiff from Troop G to Troop C of the Missouri State Highway Patrol.
1. Plaintiff Hughes is a citizen of Missouri and the United States, and is an employee of the Missouri State Highway Patrol.
2. Prior to October 16, 1981, plaintiff was assigned to Troop G of the Patrol. Troop G is headquartered in Willow Springs, Missouri. Plaintiff had been assigned to Troop G for the past eight years.
3. Defendant Whitmer is the appointed Superintendent of the Missouri State Highway Patrol and exercises the powers of that position under the provisions of Missouri law. Section 43.120 et seq., RSMo (1978).
4. Plaintiff and his family own a home in Willow Springs. The home is subject to a mortgage which was secured at a favorable interest rate. Plaintiff's wife is engaged in a real estate business in Willow Springs.
5. Plaintiff is respected by the Willow Springs community, is regarded as a "good trooper" by his peers, is a dedicated patrolman and enforces the law evenhandedly.
6. On October 16, 1981, the plaintiff was summoned to a meeting at Troop Headquarters. After receipt of the summons, the plaintiff contacted his attorney. His attorney was not permitted to accompany him at the meeting. The plaintiff met with Captain McKee and Major Hoffman at Troop Headquarters in Willow Springs. The plaintiff was told that he was being permanently transferred to Troop C and that he should report to Troop C on October 19. McKee and Hoffman acted in accordance with orders which they had received from the defendant.
7. Plaintiff reported to Troop C on Monday morning, October 19, 1981. Troop C is located in Kirkwood, Missouri. Unlike Willow Springs, Kirkwood is located in an urban environment and is not favorably regarded by rural patrol persons. After reporting to Troop C, plaintiff requested and was granted two weeks of accrued vacation leave.
8. A written transfer order was issued on October 19, 1981. The order stated no reason for the transfer. No written reasons for the transfer have ever been received by the plaintiff.
9. On October 19, 1981, another trooper was transferred from Troop C to Troop G. This trooper, a former resident of Willow Springs who had been previously transferred out of Troop G because of personal problems, was consulted about the transfer and was given until November 1, 1981 to prepare for it.
10. Plaintiff was not transferred in order to remedy an imbalance in Troop C or because he possessed any peculiar skills needed at Troop C.
11. A rapid, non-voluntary transfer of a trooper for reasons other than for promotion or on request of the trooper is regarded by peers of the plaintiff as a disciplinary measure.
12. Prior to the defendant's October 16, 1981 order of transfer, the plaintiff was investigating illegal drug activity in the area covered by Troop G. Plaintiff and other law enforcement persons were informed that the son of Lt. Elmore might be involved in drug trafficking. Lt. Elmore was in charge of the Headquarters Staff at Troop G until October 9, 1981. He was not in the chain of command over the plaintiff.
13. The plaintiff and another trooper conveyed the information about Lt. Elmore's son to Captain McKee. McKee ordered the two to continue the investigation of the reported drug trafficking activities without regard to who might be involved.
14. Plaintiff had a legitimate concern that Lt. Elmore, who was aware of the investigation, might have been responsible for the leaking of information about a drug raid to those under investigation.
15. Lt. Elmore enlisted a private individual to investigate the plaintiff.
16. Plaintiff had information which suggested that a superior officer at Troop G had engaged in the cover-up of an alleged beating of a criminal suspect by two Troop G patrol persons.
17. Plaintiff also acted on information received from an informant that late night flights out of a local airport were involved in drug trafficking. He requested special airplane surveillance equipment from Captain McKee. McKee approved the surveillance and ordered the equipment. A local state representative, whose private airplane was housed at the airport, complained about the surveillance. The surveillance equipment was never received. The flights ended soon after the request.
18. In early October, 1981, the defendant Whitmer met with Lt. Elmore. The two discussed the transfer of the plaintiff to Troop C. Elmore returned to Willow Springs and told members of the Patrol and others in the community that plaintiff would be transferred. Plaintiff was not told of the transfer.
19. On October 12, 1981, Elmore wrote in a memorandum, which was referenced as "Disciplinary Action—Trooper W. E. Hughes," that the plaintiff should be transferred. Lt. Elmore complained about the plaintiff's investigation of his son's possible involvement in the local drug trafficking problem. That memorandum was endorsed by Lt. Hickman, Captain McKee and the defendant. Neither Elmore, Hickman, McKee, nor the defendant discussed the memorandum with the plaintiff prior to the issuance of the October 16 transfer order. The plaintiff was never given an opportunity to refute any charges made against him.
20. Plaintiff has an exemplary record on the Patrol. Lt. Elmore had, prior to 1981, evaluated the plaintiff highly. In 1981, Lt. Elmore stated that the plaintiff "doesn't seem to understand that the law needs to be bent a little at times."
21. The defendant, as Patrol Superintendent, is vested with authority under Missouri law to provide rules for discipline of Patrol members. The system presently in force requires formal charges of misconduct to be presented, a hearing, findings, a report and an appeal. Disciplinary transfers are permitted where warranted by the circumstances. See Appendix.
The parties agree that the defendant's October 16, 1981 order transferring the plaintiff from Troop G to Troop C was issued under color of state law. See, e.g., Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Green v. Dumke, 480 F.2d 624 (9th Cir. 1973) ("Under color of state law" requirement of Section 1983 is the same as the requirement of fourteenth amendment). The defendant, as the Superintendent of the Missouri State Highway Patrol, is empowered to prescribe rules and regulations for the discipline of members of the Patrol. Section 43.120 RSMo (1978). As the rules set out in the appendix make manifest, any member of the Patrol who is confronted with the threat of disciplinary action is entitled to written notification of the charges against him, a hearing before a disciplinary board and an appeal to the Superintendent of any disciplinary action taken by the board. Where disciplinary action is warranted, a Patrol member might be fined, demoted, transferred, suspended or dismissed.
Since Missouri freely provides a member of its State Highway Patrol with significant procedural safeguards in the event that the member is accused of conduct which could result in disciplinary action, see Meachum v. Fano, 427 U.S. 215, 229, 96 S.Ct. 2532, 2540, 49 L.Ed.2d 451 (1976); Palmer v. Board of Ed. of City of Chicago, 603 F.2d 1271, 1274 (7th Cir. 1979); Arsberry v. Sielaff, 586 F.2d 37, 46-47 (7th Cir. 1978), this Court is concerned with the personnel business of the State Highway Patrol only to the extent that it is necessary to assure that the challenged transfer was reached in conformity with relevant procedural requirements. Doe v. Hampton, 566 F.2d 265, 271-72 (D.C. Cir. 1977); Villareal v. EEOC, Slip Op. 80-0992 (W.D.Mo.1981). The question to be resolved by this Court is whether the defendant's order transferring the plaintiff from Troop G to Troop C was a disciplinary measure. If the transfer was a disciplinary action, then the plaintiff is entitled to the procedural protections afforded by the laws of Missouri. The question of whether the transfer was ordered for disciplinary reasons is wholly factual.
The weight of the evidence offered at the hearing on the preliminary injunction overwhelmingly establishes that the plaintiff was being disciplined by the defendant when the defendant ordered his transfer from the rural environment of Troop G to the urban environment of Troop C. The plaintiff is respected by the community of Willow Springs and is highly regarded by most of his peers on the Highway Patrol. His unblemished record on the Patrol is exemplary. Testimony offered at the hearing focused on the plaintiff's evenhanded enforcement of the laws of Missouri. The only criticism of the manner in which...
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