Adams v. Bain

• Citation: 697 F.2d 1213
• Decision Date: 30 December 1982
• Docket Number: No. 82-1020,82-1020
• Parties: Alvin S. ADAMS and David A. Gootee, Appellants, v. Richard E. BAIN, County Administrator, York County, Virginia and Wallace J. Robertson, Fire Chief, York County, Virginia, and The County of York, Virginia and The York County Volunteer Fire Department, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1213

697 F.2d 1213

Alvin S. ADAMS and David A. Gootee, Appellants, v. Richard E. BAIN, County Administrator, York County, Virginia and Wallace J. Robertson, Fire Chief, York County, Virginia, and The County of York, Virginia and The York County

Volunteer Fire Department, Appellees.

No. 82-1020.

United States Court of Appeals,

Fourth Circuit.

Argued May 7, 1982.

Decided Dec. 30, 1982.

Ronnie Cohen, Newport News, Va. (Bennett & Cohen, Inc., Newport News, Va., on brief), for appellant.

James E. Bradberry, Newport News, Va. (Cecil G. Moore, Moore, Moore & Bradberry, Thomas W. Athey, Newport News, Va., on brief), for appellee.

Before BUTZNER and SPROUSE, Circuit Judges, and HAMILTON, ^* District Judge.

SPROUSE, Circuit Judge:

Alvin S. Adams and David A. Gootee appeal the dismissal of their claims brought under 42 U.S.C. Sec. 1983, ¹ alleging that they were unconstitutionally removed from their positions as fire fighters in the York County (Virginia) Volunteer Fire Department. The defendants (appellees) are York County; the York County Volunteer Fire Department; Richard E. Bain, the then County Administrator; and Wallace J. Robertson, the York County Fire Chief. The district court dismissed the action in response to the defendants' motion challenging the complaint for failure to state an adequate basis for subject matter and personal jurisdiction and for failure to assert a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(1), (2), (6). We reverse.

York County, Virginia, is governed by an elected Board of Supervisors. Management of county activities is performed on a daily basis by a County Administrator, who at the time of the dispute in question was appellee Bain.

Fire protection in York County is provided by the York County Fire Department, whose fire fighting forces consist of two groups: a group of full-time salaried fire fighters, and members of the York County Volunteer Fire Department (VFD). The VFD is a membership organization. Although its members are not salaried employees of the county, they are covered by the county's workmen's compensation policy. The VFD receives fire fighting equipment from the county and uses the county fire department building and other county property.

VFD members are required to participate in fifty percent of the organization's activities in order to maintain membership. The VFD elects its own officers and holds regular meetings at the county-owned fire station. York County's Fire Chief, appellee Robertson, is a member of the VFD and is also a member of its Executive Committee. Both volunteer and full-time fire fighters serve under the command of the Fire Chief when participating in fire fighting activities. The Fire Chief, in turn, is accountable to the County Administrator and the Board of Supervisors.

The present case arose out of actions taken by appellees following the appearance of appellants at a meeting of the Board of Supervisors on October 5, 1978. Appellants attended the meeting as representatives of the VFD to voice their opinions regarding fire department operations. As a result of appellants' actions, appellee Robertson wrote them letters in which he terminated them from "active volunteer membership" in the York County Fire Department, and directed them to return all Department equipment. Defendants were further ordered to refrain from entering all county engine houses. In response to Robertson's invitation, the appellants "grieved" his decision to County Administrator Bain. Bain reviewed and affirmed Robertson's decision to terminate appellants' membership.

Appellees argue, and the district court apparently agreed, that the VFD is a private entity with control over its membership. They urge that even though the Fire Chief and County Administrator dismissed the appellants from further service as fire fighters, the Chief and Administrator acted under a misunderstanding of their official authority. Alternatively, appellees contend that the appellants voluntarily "resigned after their dismissal." They thus contend that the dismissals were ineffective and not made "under color of state law." Appellees further claim that because service as a volunteer fire fighter is not a "right" in any sense of the word, it does not merit constitutional protection. Appellants, on the other hand, allege that they were discharged by county officials, the VFD, or by joint action of the VFD and county officials, concededly for the exercise of rights protected by the first amendment.

The district court conducted an evidentiary hearing, which it characterized as a hearing on the jurisdictional issues, but initially held the case in abeyance pending possible state court resolution of the appellants' then current membership status in the VFD. The district court's later order indicates only that the court granted dismissal after consideration of defendants' motion and supporting memorandum. Neither the memorandum nor the pleaded facts of the case, however, suggest any support for considering a 12(b)(2) dismissal. We assume, therefore, that the district court's action was based on Fed.R.Civ.P. 12(b)(1), that it lacked subject matter jurisdiction, and on Fed.R.Civ.P. 12(b)(6), due to its belief that the complaint failed to state a claim upon which relief could be granted. We review the court's action as based independently on each of these two grounds and find it erred in dismissing the case on either ground.

We first consider the court's action as a 12(b)(6) dismissal. In reviewing a court's action grounded on this rule, we accept as true the allegations of the complaint. As this court has noted, a complaint should not be so dismissed "unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim." Johnson v. Mueller, 415 F.2d 354, 355 (4th Cir.1969). A complaint should not be thus dismissed merely because the court doubts that the plaintiff will ultimately prevail; so long as a plaintiff colorably states facts which, if proven, would entitle him to relief, the motion to dismiss should not be granted. See Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see generally, C. Wright & A. Miller, Federal Practice and Procedure Sec. 1357 (1969 & 1981 Supp.). In the present case, the appellants alternatively allege that they were dismissed by individual state officials, by the VFD, or by state officials acting jointly with the VFD, in retaliation for exercising their first amendment right to address the Board of Supervisors. We believe that these allegations clearly state a claim under section 1983.

The appellees do not deny that the appellants' dismissals resulted from their efforts to change the manner in which York County provides fire and rescue services, by speaking at a public meeting of the Board of Supervisors. That fact is not an issue on this appeal. ² Nor are we presently concerned with the issue of whether appellees' actions were constitutionally permissible under the first amendment, ³ or whether the removal of the appellants from active service as fire fighters constituted a violation of due process. Those issues also must be resolved initially at trial. Rather, to paraphrase Chief Justice Burger, the core issue presented in the 12(b)(6) aspect of this case is not whether the appellants' first or fourteenth amendment rights have been violated, but whether the appellees' actions as alleged in the complaint can fairly be seen as state action. ⁴ More specifically, the issue is whether the alleged retribution against appellants because of their actions at a public meeting and the alleged procedural irregularities in removing them from the VFD can be charged to the "state" or only to the VFD acting purely as a private entity. ⁵

The Supreme Court has recently outlined an approach for resolving issues of this type. Lugar v. Edmondson Oil Co., --- U.S. ----, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). In Lugar, Justice White aptly expressed the principle which should be applied to the facts of this case:

Our cases have accordingly insisted that the conduct allegedly causing the deprivation of a federal right be fairly attributable to the state. These cases reflect a two-part approach to this question of "fair attribution." First, the deprivation must be caused by the exercise of some right or privilege created by the state or by a rule of conduct imposed by the state or by a person for whom the state is responsible.... Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the state. Without a limit such as this, private parties could face constitutional litigation whenever they seek to rely on some state rule governing their interactions with the community surrounding them.

Although related, these two principles are not the same. They collapse into each other when the claim of a constitutional deprivation is directed against a party whose official character is such as to lend the weight of the state to his decisions.

Id. at ----, 102 S.Ct. at 2754.

The issue of whether the deprivation alleged here can be fairly attributable to the state involves questions of whether there was state action and whether the alleged wrongs were perpetrated by state actors. These questions, however, tend "to collapse into each other," and require resolution of issues of fact. There are therefore several reasons why it was improper to dismiss the complaint on a 12(b)(6) motion without receiving evidence and deciding the issues on the merits. For example, one of the appellants' claims is that the VFD removed them from membership as a result of the actions taken by Bain and Robertson. It is well settled that prohibited action taken in concert by...