794 F.2d 1152 (6th Cir. 1986), 84-6104, Wright v. Holbrook

Docket Nº:84-6104.
Citation:794 F.2d 1152
Party Name:Robert L. WRIGHT, Plaintiff-Appellant, v. John Will HOLBROOK, Individually and in His Official Capacity as Mayor of the City of Morehead, Kentucky, Defendant-Appellee.
Case Date:July 11, 1986
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1152

794 F.2d 1152 (6th Cir. 1986)

Robert L. WRIGHT, Plaintiff-Appellant,

v.

John Will HOLBROOK, Individually and in His Official

Capacity as Mayor of the City of Morehead,

Kentucky, Defendant-Appellee.

No. 84-6104.

United States Court of Appeals, Sixth Circuit

July 11, 1986

Argued May 7, 1986.

Page 1153

Buddy R. Salyer, Morehead, Ky., for plaintiff-appellant.

John R. Cox, Morehead, Ky., for defendant-appellee.

Before: KENNEDY and MILBURN, Circuit Judges, and JOINER, Senior District Judge [*].

MILBURN, Circuit Judge.

Plaintiff appeals following the dismissal of his civil rights action brought under 42 U.S.C. Sec. 1983 in which he claimed that he had been deprived of his property interest in continued employment without due process of law. Dismissal was based on the district court's conclusion that under Kentucky law plaintiff did not have a protected property interest in employment as a police officer with the City of Morehead, Kentucky. For the reasons that follow, we affirm.

I.

On July 29, 1984, plaintiff's employment of approximately ten years as a City of Morehead, Kentucky, police officer was terminated. Plaintiff was informed of his dismissal by a letter from Mayor John Holbrook. Plaintiff was given no reason for his discharge, and no opportunity to be heard was provided.

On September 17, 1984, plaintiff filed the instant section 1983 action against Mayor Holbrook, individually and in his official capacity. In his complaint plaintiff advanced one theory for recovery; viz., that a property interest in continued employment had been created by the City of Morehead Code of Ordinances and that he had been deprived of this property interest without due process of law. On the same day, plaintiff filed a motion for a preliminary injunction. Acting pursuant to 28 U.S.C. Sec. 636(b), the district court referred the motion for the preliminary injunction to a magistrate.

Page 1154

On October 9, 1984, defendant Holbrook filed a response to plaintiff's application for preliminary injunction. On October 17, 1984, plaintiff's brief to support his motion for a preliminary injunction was filed. In this brief plaintiff advanced roughly the same three theories now presented to this court; viz., that a property interest in continued employment had been created by: (1) section 35.34 of the City of Morehead ordinances, (2) section 95.700 of the Revised Kentucky Statutes, and (3) the customs and usages of the City of Morehead. The second and third theories were not advanced or otherwise suggested by the complaint.

In his Report and Recommendation entered October 31, 1984, the magistrate recommended that the preliminary injunction be denied. The magistrate's recommendation was based on the following conclusion: "Upon review of the pertinent city ordinance and state law, it is determined that plaintiff's discharge did not deprive him of a property interest protected by the Fourteenth Amendment." Pursuant to the rules of this circuit, the magistrate's Report and Recommendation included the following statement:

Objections to this Report and Recommendation must be filed within ten (10) days of the date of service of the same or further appeal is waived.

In his objections to the Report and Recommendation, plaintiff advanced only one of the above arguments to the district court. Plaintiff argued that he "was covered by Section 35.34 of the [Morehead] Code of Ordinances, and therefore had a reasonable expectancy of continued employment unless the executive authority chose to follow the procedures set out in Section 35.34." Objections to Magistrate's Report and Recommendation at page 7. This was the same argument suggested by plaintiff's complaint. Plaintiff did not assert before the district court that a property interest had been created by customs and usages or section 95.700 of the Kentucky Revised Statutes. In its Memorandum Opinion and Order, entered November 28, 1984, the district court...

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