Lee v. Hutson, 86-8098

• Decision Date: 19 February 1987
• Docket Number: No. 86-8098,86-8098
• Citation: 810 F.2d 1030
• Parties: Jaxie LEE, Plaintiff-Appellant, v. Sheriff Bill HUTSON and Cobb County, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1030

810 F.2d 1030

Jaxie LEE, Plaintiff-Appellant, v. Sheriff Bill HUTSON and Cobb County, Defendants-Appellees.

No. 86-8098.

United States Court of Appeals, Eleventh Circuit.

Feb. 19, 1987.

Ralph Goldberg, Atlanta, Ga., for Lee.

Michael A. O'Quinn, Atlanta, Ga., for Hutson, et al.

Appeal from the United States District Court for the Northern District of Georgia.

Before HILL and FAY, Circuit Judges, and MORGAN, Senior Circuit Judge.

HILL, Circuit Judge.

Appellant, Jaxie Lee, was a tenured employee of the Cobb County, Georgia Sheriff's Department. Ms. Lee was terminated from this employment on November 30, 1983, for unauthorized dissemination of criminal records. She received a hearing before the Cobb County Civil Service Board on January 17, 1984. The Board affirmed Sheriff Hutson's decision to terminate Ms. Lee.

Ms. Lee then brought suit in federal district court alleging various violations of section 1983. Her case consisted of a procedural due process claim challenging the procedures used by the Board during her hearing; a substantive due process claim alleging that her dismissal was arbitrary and capricious, in that the appellees failed to present exculpatory evidence to the Board in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); a claim under Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), that termination prior to her hearing violated due process; and a privacy claim alleging that dissemination of her criminal arrest record by appellee Hutson denied her due process and constituted an invasion of privacy under Georgia law and the federal Constitution. Sheriff Hutson and the county moved for dismissal for failure to state a claim, pursuant to Fed.R.Civ.P. 12. This motion was granted, except for the Loudermill claim. ¹ The court then granted Ms. Lee's unopposed motion to certify this decision as final under Fed.R.Civ.P. 54(b). Ms. Lee appeals all but the privacy claim. ²

In opposing the motion for summary judgment, Ms. Lee claimed that the hearing given to her by the Cobb County Civil Service Board was flawed in several respects. First, she claimed that the Board failed to weigh independently the evidence and punishment given. Second, she claimed that she was not afforded a unbiased panel. Third, she claimed that the Board did not make a determination based upon the evidence and arguments presented to it; she argued that the hearing was a sham. Finally, she argued that the Civil Service Board failed to state which evidence it relied upon in reaching its decision and the reason for that decision; all Ms. Lee found out was that the vote had been three to two against her.

The district court found that, on the face of Ms. Lee's complaint, she was not challenging the adequacy or fairness of the procedural system established by the State for Civil Service dismissals. Rather, she claimed that the Board failed to follow this system, and made a sham out of the system, in her case. The district court noted that when a dismissed employee has a grievance against the Board such an employee has the right to seek review in the state superior court by way of certiorari. See O.C.G.A. Sec. 5-4-1 et seq. (1982). ³

The court considered this in light of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). In Parratt the Supreme Court held that where a state's procedures governing the taking of property are not fundamentally unfair on their face, and where an adequate remedy exists under state law to correct alleged errors in the administration of those procedures, there can be no deprivation without procedural due process because all process "due" has been afforded. The district court found that Ms. Lee, because she was challenging only the fairness of the procedures in her particular case, failed to state a claim under Parratt; the state remedies available to her were perfectly adequate. The certiorari procedure would have allowed her to pursue both the procedural and substantive due process aspects of her claim. Accordingly, the court dismissed her case for failure to state a claim.

I

On appeal, Ms. Lee's first argument is that Parratt v. Taylor does not apply to any of her substantive due process claims. For this proposition appellant correctly cites Gilmere v. City of Atlanta, 774 F.2d 1495 (11th Cir.1985) (en banc). In Gilmere this court held that substantive due process claims are not subject to dismissal under Parratt v. Taylor, regardless of the adequacy of state remedies. This en banc decision post-dated the district court's dismissal of Ms. Lee's case. Thus, were Parratt the only basis for the district court's dismissal of appellant's putative substantive due process claims, Gilmere would mandate a reversal.

However, not every wrong committed by a state actor rises to the level of a "constitutional tort," sufficient to trigger a substantive due process violation. In Gilmere we stated, "[S]ubstantive due process is violated by state conduct that 'shocks the conscience' or constitutes force that is 'brutal' and as such 'offend[s]' even hardened sensibilities." Id. at 1500, quoting Rochin v. California, 342 U.S. 165, 172-73, 72 S.Ct. 205, 209-10, 96 L.Ed. 183 (1952). The Gilmere case was a police brutality case wherein the victim of alleged excessive force died as a result of police conduct. The court found that this amounted to conduct so egregious as to shock the conscience, making out a substantive due process claim.

The question here is whether Ms. Lee's allegations pointed to a state conduct that was so shocking or egregious as to give rise to a claim for damages under the concept of substantive due process. If so, then Parratt is inapplicable and the claims cannot be dismissed for failure to state a claim. If in fact the Board's conduct was not unconstitutionally arbitrary, then Ms. Lee's allegations amount to nothing more than an attack on the procedures used in her particular case, and the district court must be affirmed.

Appellant cites several cases which she claims support her theory that a Brady violation in an employment hearing can be considered a substantive due process violation. We find none of the presented analogies persuasive. Instead, we find Supreme Court precedent dispositive. In Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976), the Supreme Court rejected a police officer's claim that his constitutional right to liberty had been violated when he was discharged for allegedly false reasons. That is, of course, analogous to what Ms. Lee is alleging with her Brady violation claim. In Wood, the court stated:

Indeed the impact on petitioner's constitutionally protected interest in liberty is no greater even if we assumed that the city manager deliberately lied. Such fact might conceivably provide the basis for a state law claim, the validity of which would be entirely unaffected by our analysis of the federal constitutional question.

....

The federal court is not the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies.... In the absence of any claim that the public employer was motivated by a desire to curtail or to penalize the exercise of an employee's constitutionally protected rights, we must presume that official action was regular and, if erroneous, can best be corrected in other ways. The Due Process Clause of the Fourteenth Amendment is not a guarantee against incorrect or ill advised personnel decisions.

Id. at 349-50 and n. 13, 96 S.Ct. at 2079-80 and n. 13. As the appellees point out, if a deliberate lie by governmental employer does not amount to an independent constitutional tort, then an alleged Brady violation during an employment hearing also fails to constitute a substantive due process violation. Nor does the record demonstrate any other evidence indicating that Ms. Lee's dismissal was so arbitrary that it violated substantive due process. We are dealing only with alleged procedural errors.

Although procedural due process might be violated if a mechanism for correcting these alleged errors were not available, Georgia does provide avenues for redress of such claims, as noted by the district court. While Patsy v. Board of Regents, 457 U.S. 496, 102 S.Ct....