Abbott v. Thetford

• Decision Date: 26 January 1973
• Docket Number: Civ. A. No. 3847-N.
• Citation: 354 F. Supp. 1280
• Parties: C. D. (Denny) ABBOTT, Plaintiff, v. William F. THETFORD, etc., Defendant.
• Court: U.S. District Court — Middle District of Alabama

354 F. Supp. 1280

C. D. (Denny) ABBOTT, Plaintiff, v. William F. THETFORD, etc., Defendant.

Civ. A. No. 3847-N.

United States District Court, M. D. Alabama, N. D.

January 26, 1973.

Howard A. Mandell, Montgomery, Ala., for plaintiff.

Robert B. Stewart and Richard H. Dorrough, of Jones, Murray, Stewart & Yarbrough, Montgomery, Ala., for defendant.

OPINION

VARNER, District Judge.

This cause is a proceeding by Plaintiff Abbott, Chief Probation Officer of the Circuit Court, Domestic Relations Division of Montgomery County, Alabama, against Defendant Thetford, Judge of that Court, for the allegedly wrongful discharge of Plaintiff by the Defendant for violation by Plaintiff of a departmental order issued by the Defendant to Plaintiff and other employees of that Court. The Judge ordered that his staff not bring suits with possible exceptions. Plaintiff brought suit as next friend for certain minors.

This Court has jurisdiction because of the allegations of violations of 42 U.S.C. § 1983 and the due process clause of the Fourteenth Amendment. The Court in Harrington v. Taft, 339 F.Supp. 670, 672, in reference to a similar case, stated the following:

"The jurisdiction of this court to sit in a § 1983 action is established by 28 U.S.C. § 1343.

"Section 1983 invests the federal courts with the power to enforce the provisions of the Fourteenth Amendment of the Constitution of the United States against `those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it.' Monroe v. Pape, 365 U.S. 167, 172, 81 S.Ct. 473, 476, 5 L.Ed.2d 492 (1961). In the instant case, the plaintiff charges that the manner in which he was deprived of continued employment with the Cranston Police Department constituted a violation of the Fourteenth Amendment, specifically the clause which provides that no State shall `deprive any person of life, liberty, or property without due process of law.' `And it is well settled that municipal ordinances and the actions in office of municipal officials constitute state action and are within the prohibition of the Fourteenth Amendment. Yick Wo v. Hopkins, 1886, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; Lovell v. Griffin, 1938, 303 U.S. 444, 450, 58 S.Ct. 666, 82 L.Ed. 949.' McCoy v. Providence Journal Co. (1st Cir. 1951), 190 F.2d 760, 764, cert. den. 342 U.S. 894, 72 S.Ct. 200, 96 L.Ed. 669 (1951). Claims of denial of procedural due process arising out of dismissal from public employment are routinely accepted by federal courts as being within the contemplation of § 1983. See Drown v. Portsmouth School District, 435 F.2d 1182 (1st Cir. 1970) (Drown I).

"2 There is no doubt that plaintiff has an interest in being rehired sufficient to prevent the City of Cranston from discharging him for constitutionally impermissible reasons. Slochower v. Board of Higher Education of New York City, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956); Johnson v. Branch, 364 F.2d 177 (4th Cir., 1966), cert. denied 385 U.S. 1003, 87 S.Ct. 706, 17 L.Ed.2d 542 (1967); Albaum v. Carey, 283 F.Supp. 3 (E. D.N.Y.1968)."

Plaintiff insists upon the invalidity of the order and the impropriety of his discharge —both as to cause and procedure. He admits the wilful violation of the order but says the order that he not bring suit infringed his alleged right to freedom of speech and right of redress of grievances protected by the First Amendment and "chilled" the rights of the minors for whom he brought the suit to equal protection protected by the Fourteenth Amendment. Plaintiff further says the discharge deprived him of property without due process of law. He alleges that he felt a moral obligation to do what was necessary to provide better facilities for such minors.

The Defendant Judge insists upon the propriety of both the order and the discharge, basing his position on the fact that he was also seeking facilities for the care of neglected black children through amicable means; that Defendant directed that no such suit be filed because Defendant had reason to believe that Plaintiff was considering a suit which would probably defeat Defendant's efforts to obtain such facilities; and that such suit was a wilful violation of his order and would tend to interfere with the effectiveness of his Court unless the Judge disassociated himself from the issues of the suit by discharging Plaintiff. The state law, Act 2280 of the 1971 Legislature, State of Alabama, provides for consideration by a county personnel board of the propriety of departmental orders such as that in question (Subsections 2c, 11) and of the propriety of the discharge of such personnel (Subsections 9, 10). The Plaintiff failed to avail himself of this administrative remedy. He claims that the remedy would have been unfair as the Defendant was, as a matter of law, one of the three Circuit Court Judges who jointly appointed one of the three personnel board members.

Evidence tends to show, and this Court finds, that both parties were seeking to obtain better facilities for care of neglected black children. There is no question in this case of the desirability of protection of needy children of all races nor is there any question of their constitutional right to equal protection in the use of public facilities.

FINDINGS OF FACT

Defendant Thetford is and was at all pertinent times Judge of the Circuit Court of Montgomery County handling all domestic relations and juvenile court problems and the supervisory officer of approximately 40 county employees, including Plaintiff Abbott who, until his discharge on November 17, 1972, served as Chief Probation Officer of the juvenile jurisdiction of that Court.

In 1969, Plaintiff, as Chief Probation Officer and as next friend of minors, had filed a suit (designated as the 1969 suit) against certain state officials, without the consent of Judge Thetford and without having given prior notice to Judge Thetford either of his intention to file the suit or of the specific facts complained of. That suit sought to correct the unsatisfactory commitment facilities for delinquent and neglected children in Montgomery County and to correct certain mistreatment of minor inmates at the Mt. Meigs Industrial School, a state institution for incarceration and treatment of juvenile delinquents. During the pendency of that 1969 suit, the Plaintiff, after having made one or more news releases about the suit and after having been directed by the Judge to give no more news releases, was suspended for 15 days for having given a news release in violation of the Judge's order. After a conference between Plaintiff and Defendant, the suspension was lifted after ten days. That suit and the surrounding circumstances are relevant only to the parties' knowledge and state of mind in the fall of 1972.

Judge Thetford, upon being informed in October, 1972, that Chief Probation Officer Abbott was spending considerable time in the office of a lawyer known to be interested in civil rights matters and suspecting that he proposed to file another lawsuit, called together three persons, Miss Goodwin, Mr. Franklin and Mr. Abbott, as department heads of court personnel, and issued an order directing that no suit, with possibly some exceptions, be filed by court personnel. While recollections are in conflict as to the conditions of the prohibition, some of the witnesses testified that the prohibition involved only suits which might involve the operation of the Circuit Court and excepted those suits wherein the Judge's previous knowledge and consent was secured. This Court finds that all concerned understood that the type suit intended to be prohibited was any suit that the Judge felt would affect the operation of the Court. Obviously, all parties understood that the purpose thereof was to provide that the Judge have an opportunity to decide the propriety of his assigned personnel's filing suits which the Judge thought might affect the effectiveness of his Court.

Within approximately one month after said order, Mr. Abbott wilfully and knowingly violated the Judge's order by filing the 1972 suit against the Alabama Department of Pensions and Securities and six allegedly private children's homes in Alabama—all of which are facilities of the Thetford Court in the sense that that Court must coordinate regularly with the Department and the Court has an opportunity to place neglected children in its custody with such homes at the homes' discretion.

Several witnesses, both black and white, stated that effectiveness of the Court with the defendant children's homes had not diminished since the suit. The effect of the suit, however, must be considered in light of the fact that Abbott was immediately discharged upon his filing the suit.

At least one of the managers of one of the defendant homes has informed Judge Thetford that his home is supported largely by white donees and that the attempt to judicially integrate the home will seriously curtail donations. Judge Thetford testified that, to his best knowledge, the suit by his Chief Probation Officer would probably adversely affect the relationship of his Court with the several defendant children's homes which have absolute authority to decline for placement at such home any child referred thereto by his Court. He further testified without contradiction that his Court must work closely with the Department of Pensions and Securities. It is argued that someone had to decide whether the Court's function would be better served by working with the predominantly white institutions and trying amicably to get other facilities for blacks or by filing this suit. Abbott is the alter ego of the Judge. Abbott's disapproval of a correctional or custodial institution is often considered to be the Judge's. The Judge's function involves the Judge's support, insofar as his public image is concerned, of public or semi-public correctional and child care institutions....