Henry v. Metropolitan Sewer Dist.

• Decision Date: 27 December 1990
• Docket Number: No. 89-6521,89-6521
• Citation: 922 F.2d 332
• Parties: William R. HENRY, Plaintiff-Appellant, Dixie L. Sprouse; William Tommy Vaughn; Stephen Milliner; Edward Baker; Bessie Mae Marsh; Donald Ray Long; Charles T. King, Sr.; Jesse L. Waldon, IV; Ernest Gaither; Michael D. Richard, Sr.; Johnney Lee Foster; David Hayes; and Ronald J. Harris, Plaintiffs, v. METROPOLITAN SEWER DISTRICT; Gordon Garner, Executive Director, MSD; Mike Crawford, Personally and in his Official Capacity; Ron Crawford, Personally and in his Official Capacity; Green & Associates, a Sole Proprietorship; Mel Green; Bonnie Wright; and Al Beck, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 332

922 F.2d 332

William R. HENRY, Plaintiff-Appellant Dixie L. Sprouse; William Tommy Vaughn; Stephen Milliner Edward Baker; Bessie Mae Marsh; Donald Ray Long; Charles T. King, Sr.; Jesse L. Waldon, IV; Ernest Gaither Michael D. Richard, Sr.; Johnney Lee Foster; David Hayes and Ronald J. Harris, Plaintiffs, v. METROPOLITAN SEWER DISTRICT; Gordon Garner, Executive Director, MSD; Mike Crawford, Personally and in his Official Capacity; Ron Crawford, Personally and in his Official Capacity; Green & Associates, a Sole Proprietorship; Mel Green; Bonnie Wright; and Al Beck, Defendants-Appellees.

No. 89-6521.

United States Court of Appeals, Sixth Circuit.

Argued Sept. 21, 1990.

Decided Dec. 27, 1990.

Kenneth L. Sales (argued), Segal, Isenburg, Sales, Stewart & Cutler, Louisville, Ky., for plaintiffs-appellants.

Frank G. Simpson, III, Laurence J. Zielke (argued), Michael W. Lowe, and Gerald M. Woodcox, Pedley, Ross, Zielke, Gordinier & Porter, Louisville, Ky., for defendants-appellees.

Before JONES and GUY, Circuit Judges, and PECK, Senior Circuit Judge.

RALPH B. GUY, JR., Circuit Judge.

In this action under 42 U.S.C. Sec. 1983 to redress alleged deprivations of due process, equal protection, and privacy rights, the district court dismissed without prejudice plaintiff William Henry's claim against a Kentucky agency and several of its officers in their official capacities upon finding the claim barred by the eleventh amendment. Additionally, the district court granted summary judgment for the defendants in their individual capacities based upon the doctrine of qualified immunity. On appeal, the plaintiff contends that the district court erred in dismissing the official capacity claim without prejudice instead of remanding it to the state court from which it was removed. The plaintiff further asserts that, in light of the eleventh amendment bar to the official capacity claim, the district court lacked jurisdiction to address the merits of the individual capacity claim. Finally, the plaintiff argues that the district court utilized an improper qualified immunity standard in resolving the various aspects of the individual capacity claim on the merits. We find that the proper method for resolving the official capacity claim under the eleventh amendment should have involved remand instead of dismissal without prejudice. We reject the plaintiff's argument that the district court lacked jurisdiction to address the merits of the individual capacity claim. We further conclude that the district court did not err in applying the doctrine of qualified immunity to support summary judgment for the defendants on the right to privacy, due process, and equal protection components of the individual capacity claim under section 1983.

I.

In May of 1985, defendant Gordon Garner became the executive director of the Louisville and Jefferson County Metropolitan Sewer District (MSD), a Kentucky agency responsible for building and supervising solid waste disposal facilities. See Ky.Rev.Stat.Ann. Secs. 76.010-76.210 (Baldwin 1987). Acting on information that various MSD employees were involved in illicit drug activity, Garner met with Michael Crawford, the MSD personnel director, and Ron Crawford, a member of the MSD legal department. At this meeting, Garner decided to hire a private firm to investigate suspected drug use in the MSD maintenance yard workforce. By August of 1985, Garner had authorized the hiring of defendant Green & Associates, a private investigation firm.

Defendant Mel Green of Green & Associates dispatched two undercover agents, defendants Bonnie Wright and Al Beck, to MSD in September of 1985. Wright and Beck were processed through normal MSD hiring channels, placed on the MSD payroll, assigned to work crews along with various MSD employees, and instructed to socialize with MSD employees during and after work. In a matter of weeks, Wright and Beck began smoking marijuana and drinking regularly with MSD employees. Wright and Beck also bought marijuana from MSD employees and provided them with drugs and alcohol. As Wright and Beck developed information regarding drug use by MSD employees, they relayed this information to Green, who passed it on to Garner, who in turn informed the safety director for the City of Louisville and the Louisville chief of police. The safety director referred Garner to an officer in the Narcotics Division of the Louisville Police Department, and the chief of police offered his cooperation in the investigation. Consequently, Green began furnishing materials to the Louisville Police Department for processing at the Kentucky State Police crime laboratory.

A November 1985 meeting involving Garner, Green, Michael Crawford, and two Louisville police officers resulted in the decision to continue the investigation in order to gather more evidence of drug use by MSD employees. When the investigation ended in January of 1986, MSD instituted disciplinary proceedings against 26 employees, and the Louisville Police Department arrested six employees, including plaintiff Henry. Henry was charged under Kentucky law with trafficking in marijuana but not convicted. Henry was subsequently discharged by MSD, and the sanction was sustained following an arbitration hearing.

In response to his arrest and discharge, the plaintiff filed suit in the Jefferson County Circuit Court alleging violations of both federal and state law. The defendants removed the action, and the plaintiff (along with various former co-workers) then filed an amended complaint against Garner, Michael Crawford, and Ron Crawford in their official and individual capacities, as well as the MSD, Green & Associates, Mel Green, Wright, and Beck. The four-count amended complaint set forth federal claims under 42 U.S.C. Sec. 1983 and the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Secs. 1961-1968, in addition to state claims for abuse of process and failure to comply with the Kentucky Open Records Act, Ky.Rev.Stat.Ann. Secs. 61.870--61.884 (Baldwin 1989). ¹

The defendants moved for dismissal or, alternatively, summary judgment in September of 1988, and the district court issued a memorandum opinion and order in November of 1989 granting the motion. The district court held that the section 1983 and RICO claims against the MSD and its officers in their official capacities were barred by the eleventh amendment. The district court further ruled that qualified immunity insulated the defendants from liability in their individual capacities with respect to the right to privacy, due process, and equal protection components of the section 1983 claim. Finding no basis for liability under RICO, the court granted summary judgment for all of the defendants on that claim. Finally, the district court "remand[ed] to the State Court the pendent state claim of abuse of process." ² This appeal followed.

The plaintiff has abandoned his RICO claim on appeal, and has focused his argument upon the district court's disposition of the section 1983 claim. With regard to the official capacity claim under section 1983, the plaintiff does not challenge the district court's determination that the eleventh amendment bars such a claim. Instead, the plaintiff asserts that the district court should have remanded the official capacity claim rather than dismissing it without prejudice. The plaintiff's second contention addresses the district court's subject matter jurisdiction: the plaintiff insists that the eleventh amendment bar rendered removal improvident, and therefore divested the district court of jurisdiction to address the merits of the section 1983 claim against the defendants in their individual capacities. The plaintiff's final argument, which presumes that the district court had jurisdiction to consider the section 1983 individual capacity claim, is directed at the district court's application of qualified immunity to grant summary judgment in favor of the defendants. ³ We shall consider these three arguments seriatim.

II.

The eleventh amendment provides that:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of Any Foreign State.

Despite the textual reference to suits brought against a state by "Citizens of another State," the Supreme Court "long ago held that the [Eleventh] Amendment bars suits against a State by citizens of that same State as well." Papasan v. Allain, 478 U.S. 265, 276, 106 S.Ct. 2932, 2939, 92 L.Ed.2d 209 (1986) (citing Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890)); see also Welch v. Texas Dep't of Highways and Pub. Transp., 483 U.S. 468, 478-88, 107 S.Ct. 2941, 2948-54, 97 L.Ed.2d 389 (1987) (reaffirming Hans ). Moreover, although the protection of the eleventh amendment "does not extend to counties and similar municipal corporations[,]" Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572-73, 50 L.Ed.2d 471 (1977), the Court has observed that "some agencies exercising state power have been permitted to invoke the [Eleventh] Amendment in order to protect the state treasury from liability that would have had essentially the same practical consequences as a judgment against the State itself." Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 400-01, 99 S.Ct. 1171, 1176-77, 59 L.Ed.2d 401 (1979) (footnote omitted); accord Estate of Ritter v. University of Michigan, 851 F.2d 846, 850-51 (6th Cir.1988). Likewise, "[r]elief that in essence serves to compensate a party injured in the past by an action of a state official in his official capacity that was illegal under federal law is barred even when the state official is the named defendant." Papasan, 478 U.S. at 278, 106 S.Ct. at 2940. While the reach of the eleventh amendment has thus essentially been settled by ...