Clukey v. Town of Camden

• Decision Date: 21 May 2013
• Docket Number: No. 12–1555.,12–1555.
• Citation: 717 F.3d 52
• Parties: Alan CLUKEY and Dera Clukey, Plaintiffs, Appellants, v. TOWN OF CAMDEN, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

717 F.3d 52

Alan CLUKEY and Dera Clukey, Plaintiffs, Appellants,

v.TOWN OF CAMDEN, Defendant, Appellee.

No. 12–1555.

United States Court of Appeals,

First Circuit.

May 21, 2013.

David M. Glasser, for appellants.

Frederick F. Costlow, with whom Heidi J. Hart and Richardson, Whitman Large & Badger were on brief, for appellees.

Before HOWARD, STAHL, and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.

Plaintiff-appellant Alan Clukey brought this procedural due process claim against his former employer, the Town of Camden (“the Town”), pursuant to 42 U.S.C. § 1983 alleging that the Town deprived him of a constitutionally protected property interest in his right to be recalled to employment without due process of law. The district court dismissed Clukey's complaint, adopting the magistrate judge's conclusion that while Clukey did have a protected property interest in his recall right, his § 1983 claim was foreclosed by the availability of a state law breach-of-contract claim.

Although the court was correct that Clukey's complaint alleged a protected property interest in his recall right, we cannot accept its conclusion that Clukey's potential recourse to state law foreclosed his § 1983 claim. Hence, we vacate the district court's order and remand for further proceedings.

I.

We draw the following facts, which we take as true, from the complaint and documents incorporated by reference into the complaint. See Lass v. Bank of America, N.A., 695 F.3d 129, 133–34 (1st Cir.2012).

Plaintiff Alan Clukey was a police dispatcher with the Camden Police Department for 31 years until his department was eliminated in 2007 and he was laid off. At the time of his lay-off, Clukey was the most senior employee in his department.

The terms of Clukey's employment with the Town were governed by a Collective Bargaining Agreement (“CBA”) between the Town and the Fraternal Order of Police. In critical part, Article 19, Section 3 of the Collective Bargaining agreement provides that:

In the event it becomes necessary for the Employer to layoff employees for any reason, employees shall be laid off in the inverse order of their seniority, by classification, with bumping rights. Bumping shall not be allowed between the police function and the dispatcher function. Employees shall be recalled from lay-off according to their seniority provided they are qualified to fill the position. Police function and dispatcher function shall be treated separately....

The affected employee has recall rights for twelve (12) months from the date of such lay off.

Article 7 of the CBA provides a formal grievance procedure for dealing with “any dispute between the parties as to the meaning, or application, of the specific terms of the Agreement.” The grievance procedure provides for an escalating interactive process and an informal hearing. If the employee remains dissatisfied at the conclusion of the informal process, she can request arbitration. The decisions of the arbitrator “shall be final and binding on the parties for the duration of the Agreement.”

In the twelve months following Clukey's termination, at least two positions opened with the police department for which Clukey was qualified—one position as an Administrative Assistant and one as a Parking Enforcement Officer. The Town did not recall him to either position. Indeed, the Town filled these positions with new hires without providing Clukey any notice that he was not being recalled, or explaining how he could appeal this determination.

Clukey and his wife Dera Clukey brought suit in federal court against the Town of Camden under 42 U.S.C. § 1983, alleging that the Town had deprived him of his property interest in his right to be recalled without providing him due process of law in violation of the Constitution's procedural due process guarantees.¹ The Town filed a motion under Federal Rule of Civil Procedure 12(b)(6) to dismiss Clukey's claims, arguing that Clukey did not have a constitutionally protected property interest in his right to be recalled.

In reviewing the defendant's motion, the magistrate judge determined that Clukey did have a property interest in his right to be recalled, but ultimately concluded that our decision in Ramírez v. Arlequín, 447 F.3d 19 (1st Cir.2006), compelled the conclusion that Clukey's claim was not cognizable under § 1983. In particular, the magistrate judge's recommendation relied heavily on our conclusion that:

[a] claim of breach of contract by a state actor without any indication or allegation that the state would refuse to remedy the plaintiffs' grievance should they demonstrate a breach of contract under state law, does not state a claim for violation of the plaintiffs' right of procedural due process.

Id. at 25 (citation omitted) (internal quotation marks omitted). Concluding that, like the plaintiff's claim in Ramírez, Clukey's claim was one for breach of contract, the magistrate judge recommended dismissal. The district court adopted the recommendation, dismissing Clukey's complaint for failure to state a claim.² Clukey appeals.

II.

To state a procedural due process claim under § 1983, the plaintiff must allege facts which, if true, establish that the plaintiff (1) had a property interest of constitutional magnitude and (2) was deprived of that property interest without due process of law. See García–Rubiera v. Fortuño, 665 F.3d 261, 270 (1st Cir.2011). Our review of the trial court's dismissal of Clukey's complaint is de novo. See Ramírez, 447 F.3d at 20.

A. Clukey's Property Interest In His Right to Be Recalled1. Property Interests In Public Employment

“The threshold issue in a procedural due process action is whether the plaintiff had a constitutionally protected property interest at stake.” Mard v. Town of Amherst, 350 F.3d 184, 188 (1st Cir.2003) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538–41, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985)). The Due Process Clause guarantees individuals procedural protections from state actions that deprive those individuals of their property interests in certain entitlements and benefits. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 255, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (property interest in welfare benefits); Perry v. Sindermann, 408 U.S. 593, 599, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) (public employment); Goss v. Lopez, 419 U.S. 565, 573, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) (attendance at public schools); Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 3, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978) (utility services); Barry v. Barchi, 443 U.S. 55, 64, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979) (professional licenses).

The Town asserts, without citing any precedent, that it is impossible for Clukey to have a property interest in his right to recall because “no property interest in continued employment can exist if one is not already employed.” This argument ignores the centrality of state law to the property interest inquiry. The critical inquiry in a procedural due process case involving a right of employment is whether the plaintiff has a legitimate claim of entitlement grounded in state law, not whether one is “already employed.” ³See Paul v. Davis, 424 U.S. 693, 710, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (noting that the property interests protected by the Due Process Clause “attain this constitutional status by virtue of the fact that they have been initially recognized by state law”); see also Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 771, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005) (Souter, J. concurring) (“[T]he federal process protects the property created by state law.”). The Supreme Court has emphasized that it is the prerogative of the states to define property, and “[i]t is not the business of a court adjudicating due process rights to make its own critical evaluation of those choices and protect only the ones that, by its own lights, are ‘necessary.’ ” Fuentes v. Shevin, 407 U.S. 67, 90, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). As such, our inquiry must begin by considering whether an entitlement grounded in state law exists, recognizing that “the types of interests protected as ‘property’ are varied and, as often as not, intangible, relating ‘to the whole domain of social and economic fact.’ ” Logan v. Zimmerman Brush Co., 455 U.S. 422, 430, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) (quoting Nat'l Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 646, 69 S.Ct. 1173, 93 L.Ed. 1556 (1949) (Frankfurter, J., dissenting)); see also Town of Castle Rock, 545 U.S. at 757, 125 S.Ct. 2796 (“Resolution of the federal issue begins ... with a determination of what it is that state law provides.”).

In considering whether state law creates an entitlement, we look primarily to the discretion state law accords state actors to withhold the entitlement from individuals. In general, “a benefit is not a protected entitlement if government officials may grant or deny it in their discretion.” Town of Castle Rock, 545 U.S. at 756, 125 S.Ct. 2796. Rather, “the more circumscribed is the government's discretion (under substantive state or federal law) to withhold a benefit, the more likely that benefit constitutes ‘property.’ ” Beitzell v. Jeffrey, 643 F.2d 870, 874 (1st Cir.1981); see also Colburn v. Trs. of Ind. Univ., 973 F.2d 581, 589 (7th Cir.1992) (“Property interests exist when an employer's discretion is clearly limited so that the employee cannot be denied employment unless specific conditions are met.”); Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (“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.”).

That a tenured public employee has a protected property interest in continued employment is beyond question. See Loudermill, 470 U.S. at 538–39, 105 S.Ct. 1487. Tenure is...