Morley's Auto Body, Inc. v. Hunter, 94-3158

Citation70 F.3d 1209
Decision Date18 December 1995
Docket NumberNo. 94-3158,94-3158
PartiesMORLEY'S AUTO BODY, INC., a Florida Corporation, d/b/a Morley's Towing; Morris Solow; David Solow, d/b/a Dave's Towing; Kenneth Solow, Plaintiffs-Appellees, Cross-Appellants, v. Don HUNTER, individually, and in his official capacity as Sheriff of Collier County; L. Wayne Graham, individually, and in his capacity as a Captain in the Collier County Sheriff's Office, Defendants-Appellants, Cross-Appellees, Collier County; Collier County Sheriff's Office; John Doe, 1-10, Defendants.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Julius F. Parker, Jr., The Parker Law Firm, Tallahassee, FL, for appellants.

Victoria E. Felden, Naples, FL, Michael P. McGovern, Ayres & Parkey, Knoxville, TN, for appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before ANDERSON and CARNES, Circuit Judges, and OWENS *, District Judge.

CARNES, Circuit Judge:

Collier County Sheriff Don Hunter and Captain L. Wayne Graham appeal from a judgment entered against them in their official capacities. That judgment followed a jury trial and was entered in favor of plaintiffs Morley's Auto Body, Inc., and David Solow, d/b/a Dave's Towing. The main question presented in this 42 U.S.C. Sec. 1983 case is whether two wrecker service companies, and their owners, had a constitutionally protected property interest in remaining on a wrecker rotation call list maintained by the Collier County Sheriff's Office. Because such property interests must be determined by reference to state law, and because we can find no Florida law to support their claim of entitlement, we hold that the plaintiffs have failed to establish that they had a property interest protected by the Due Process Clause of the Fourteenth Amendment. Therefore, we will reverse the judgment of the district court with respect to the procedural due process claim.

Additionally, this case involves the cross-appeal of the individual plaintiff David Solow. Solow, who claimed that Captain Graham violated his right under the Fourth and Fourteenth Amendments to be free of unreasonable seizure, appeals from the judgment entered by the district court after it granted a defense motion for a directed verdict. Because the record does not sufficiently link Captain Graham to the arrest related to this claim, we will affirm the district court's judgment as to it.

I. FACTS AND PROCEDURAL HISTORY

County sheriffs' offices and other law enforcement agencies that are called to the scene of automobile accidents and breakdowns regularly summon wreckers to tow away disabled vehicles. These calls or referrals are an important source of business for wrecker service companies. The Collier County Sheriff's Office, like many law enforcement agencies, maintains a "rotation list" of local private wrecker service companies that it calls on a rotating basis when wrecker services are required.

In October 1990, Sheriff Graham issued a document entitled the "Collier County Sheriff's Office Wrecker Service Policy." The twelve-page typewritten policy specifies the various equipment and operating standards for wrecker service providers seeking to be placed on the rotation list, sets up an application process, and spells out the operational details of the rotation system. The policy also requires that wrecker services on the rotation list comply with the terms it specifies in order to remain on the list. The provisions of the policy are quite detailed.

The plaintiffs are two wrecker service businesses and their operators in Collier County. Both wrecker services formerly received referral business from the Collier County Sheriff's Office through participation in the rotation call system. Due to various incidents involving their operators and employees, both of the wrecker services were removed from the rotation list. 1 The plaintiffs received no notice or opportunity for a hearing before they were removed from the list.

After being removed from the list, the plaintiffs commenced this lawsuit under 42 U.S.C. Sec. 1983. Although the plaintiffs initially sought recovery under a number of theories of liability, the parties primarily focused on the plaintiffs' procedural due process claim, and so do we. 2 Additionally, David Solow stated a claim against Captain Graham alone for unreasonable seizure in violation of the Fourth and Fourteenth Amendments. At the close of the plaintiffs' evidence, the district court directed a verdict in favor of Captain Graham on that claim.

II. DUE PROCESS CLAIM
A. THE ISSUE

Resolution of the due process claim depends on the answer to a single question: Did the plaintiffs have a constitutionally protected property interest in remaining on the rotation list? "In assessing a claim based on an alleged denial of procedural due process a court must first decide whether the complaining party has been deprived of a constitutionally protected liberty or property interest. Absent such a deprivation, there can be no denial of due process." Economic Dev. Corp. v. Stierheim, 782 F.2d 952, 954-55 (11th Cir.1986). It is undisputed that the plaintiffs received no notice or opportunity for a hearing prior to being removed from the rotation call list. Therefore, as the defendants concede, if the plaintiffs had a constitutionally protected property interest in remaining on the rotation list, they were deprived of that interest without due process of law.

The crux of the plaintiffs' argument is that the "mutually explicit understandings of the parties," taken together with the written policy, gave rise to a property interest under the principles outlined in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). The defendants argue that the plaintiffs misconstrue the principles of Roth, at least as clarified by the Supreme Court's subsequent decision in Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). Relying on Bishop and decisions of this Court that address the creation of property rights, the defendants argue that such property rights must be determined by reference to state law, and that Florida law recognizes no property interest under the circumstances of this case. Accordingly, the defendants contend that the district court committed reversible error by failing to hold, as a matter of law, that no such interest existed and by denying their summary judgment and directed verdict motions on this claim. We agree. 3

B. STANDARD OF REVIEW

"State law defines the parameters of a plaintiff's property interest for section 1983 purposes," Mackenzie v. City of Rockledge, 920 F.2d 1554, 1559 (11th Cir.1991), and "[w]hether state law has created a property interest is a legal question for the court to decide." Id. (quoting Marine One, Inc. v. Manatee County, 877 F.2d 892, 894 (11th Cir.1989)). Questions of law are subject to de novo review by this Court. E.g., Swint v. City of Wadley, Ala., 51 F.3d 988, 994 (11th Cir.1995).

C. ANALYSIS

In Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), the Supreme Court discussed the basic principles governing the existence of property interests subject to procedural due process protections: "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Id. at 577, 92 S.Ct. at 2709. The Court further explained how such a claim of entitlement may be created: "Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law...." Id.

In Perry v. Sindermann, a companion case to Roth, the Supreme Court reiterated the conceptual basis for the creation of property rights: "A person's interest in a benefit is a 'property' interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit...." 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). The plaintiffs point to the phrase "mutually explicit understandings" as support for their argument that their relationship with the Collier County Sheriff's Office creates a cognizable property interest, even in the absence of a contract with that office, and even in the absence of any supporting Florida statute, regulation, court decision, or any other source of Florida law creating the entitlement. The plaintiffs' argument fails, however, because it disregards the post-Roth teachings of the Supreme Court, and it is inconsistent with the law of this Circuit regarding the creation of constitutionally protected property interests.

After Roth and Perry, the Supreme Court clarified the relationship between state law and the creation of property interests, holding that "the sufficiency of the claim of entitlement must be decided by reference to state law." Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976) (policeman had no property interest in his continued public employment because North Carolina law did not act to create such an interest); see also Logan v. Zimmerman Brush Co., 455 U.S. 422, 430, 102 S.Ct. 1148, 1155, 71 L.Ed.2d 265 (1982) ("The hallmark of property ... is an individual entitlement grounded in state law, which cannot be removed except 'for cause.' ") (emphasis added).

This Court has consistently applied the teachings of Bishop in the context of due process deprivation claims by looking to state law to determine whether a property interest has been created. See Warren v. Crawford, 927 F.2d 559, 562-64 (11th Cir.1991) (applying Georgia law to the question of whether the plaintiff in a wrongful discharge case had property interest in his county job and observing that even a "mutual understanding" cannot...

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