Allison v. City of Live Oak, No. 76-309-Civ-J-C.

• Court: United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
• Writing for the Court: CARR
• Citation: 450 F. Supp. 200
• Parties: James M. ALLISON, Plaintiff, v. CITY OF LIVE OAK, Florida, S. T. McDowell, Mayor of Live Oak, Florida, Reece Brown, John A. Cade, John O. Cannon, John H. Hale, Charles R. McCall, City Councilmen of the City of Live Oak, Florida, Elwood Howard, Chief of Police, Live Oak, Florida, Defendants.
• Decision Date: 12 May 1978
• Docket Number: No. 76-309-Civ-J-C.

450 F. Supp. 200

James M. ALLISON, Plaintiff,
v.
CITY OF LIVE OAK, Florida, S. T. McDowell, Mayor of Live Oak, Florida, Reece Brown, John A. Cade, John O. Cannon, John H. Hale, Charles R. McCall, City Councilmen of the City of Live Oak, Florida, Elwood Howard, Chief of Police, Live Oak, Florida, Defendants.

No. 76-309-Civ-J-C.

United States District Court, M. D. Florida, Jacksonville Division.

May 12, 1978.

450 F. Supp. 201

Joe K. Moore, Jacksonville, Fla., for plaintiff.

Ernest A. Sellers, Live Oak, Fla., for defendants.

MEMORANDUM OPINION

CARR, District Judge.

The Plaintiff brings this civil rights action under 42 U.S.C. §§ 1983 and 1985(2), (3), alleging jurisdiction under 28 U.S.C. § 1343 and 28 U.S.C. § 1331(a). The case is presently before the Court on the Defendants' Motion to Dismiss.

According to the Complaint, the Plaintiff was a policeman who had been employed by

450 F. Supp. 202

the City of Live Oak since 1961. In June of 1975 the Live Oak City Council Police Committee, which was comprised of Defendants Mayor S. T. McDowell, Councilmen Charles McCall, John Cade, and Reece Brown, and Police Chief Elwood Howard, received a complaint about the conduct of the Plaintiff from a local citizen. The citizen's complaint alleged that the Plaintiff had made sexually suggestive remarks concerning the complainant's daughter. The Plaintiff was questioned by the committee about these charges to which he responded with a denial

On July 8, 1975 the Police Committee again met, without notice to the Plaintiff, in order to receive formal complaints about the Plaintiff. The Plaintiff's requests for a formal statement of charges and a list of witnesses against him were denied. A similar meeting was held on July 15, 1975 at which the Plaintiff was present. No opportunity was given to the Plaintiff at this meeting to call witnesses in his own behalf or to cross examine the witnesses who testified. At the conclusion of this meeting the Plaintiff was suspended without pay until a final determination could be made. At the City Council meeting of July 28, 1975, the Plaintiff was suspended for an additional thirty days for refusing to take a lie detector test, and for leaving his job without permission. The Plaintiff claims that this suspension suffered from the same procedural deficiencies as the previous one. Thereafter, the Plaintiff received a letter from the Defendant, Mayor McDowell, informing him that he was suspended indefinitely without pay, and that his termination would be recommended at the City Council meeting of August 28, 1975.

The Complaint states that at the August 28, 1975 meeting the Plaintiff was continued on suspended status after the Mayor set forth the reasons for the suspension. The reasons were neglect of duty and misconduct, which included engaging in illicit sexual intercourse while on duty, using crude and profane language in addressing the public, and gross insubordination.

In addition, the Complaint alleges that these charges and events were published through local newspaper articles and radio broadcasts. The Plaintiff later resigned, as he asserts, under pressure.

The Defendants in this case are the City of Live Oak, the Mayor, the City Councilmen, and the Chief of Police of Live Oak.

I

There is a presumption that a federal court lacks subject matter jurisdiction until it is shown to exist. United States v. Holland, 552 F.2d 667, 671 (5th Cir. 1977). A party seeking to invoke the jurisdiction of the federal court has the burden of establishing that jurisdiction exists. McGovern v. American Airlines, Inc., 511 F.2d 653 (5th Cir. 1975); Product Promotions v. Cousteau, 495 F.2d 483, 490 (5th Cir. 1974). Furthermore, the Court is compelled to dismiss an action in which there is a lack of subject matter jurisdiction even if the jurisdictional defect is not raised in a motion of the parties. Fed.R.Civ.P. 12(h)(3).

Thus the Court must first consider several jurisdictional questions presented by this complaint. First, it has been clearly established that a municipality is not a "person" for purposes of 42 U.S.C. § 1983. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1967); Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). Thus, neither an action for damages nor for equitable relief will lie against the City of Live Oak. City of Kenosha v. Bruno, 412 U.S. 507, 513, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973).

In addition to 28 U.S.C. § 1343, the Plaintiff alleges jurisdiction under 28 U.S.C. § 1331(a), the general federal question statute. The basis for this allegation is the Supreme Court's holding in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In Bivens the Supreme Court held that federal courts exercising jurisdiction under 28 U.S.C. § 1331(a) can award damages against federal agents for violations of the fourth

450 F. Supp. 203

amendment prohibition of unreasonable searches and seizures. 403 U.S. at 397, 91 S.Ct. 1999

The Supreme Court has not as yet expanded the scope of Bivens, nor has it sought to limit the lower federal courts in their recognition of the potential breadth of the Bivens remedy. See, e. g., City of Charlotte v. Local 660, International Association of Firefighters, 426 U.S. 283, 284 n. 1, 96 S.Ct. 2036, 48 L.Ed.2d 636 (1976).

Several courts have held that Bivens authorizes actions for damages for violations of constitutional rights other than the fourth amendment. See, e. g., Paton v. LaPrade, 524 F.2d 862, 869-870 (3d Cir. 1975) (claim under first amendment involving FBI mail surveillance); Gardels v. Murphy, 377 F.Supp. 1389, 1398 (N.D.Ill.1974) (cause of action for damages recognized "for violation of any constitutionally protected interest."). In addition several decisions have implied a cause of action against municipalities under the fourteenth amendment. E. g., Owen v. City of Independence, 560 F.2d 925 (8th Cir. 1977), but see, Kostka v. Hogg, 560 F.2d 37 (1st Cir. 1977).

The Plaintiff here contends that an implied cause of action arises against the City of Live Oak under the Due Process Clause of the fourteenth amendment. Whether this action will lie is a question which has been left open by the Supreme Court. Mt. Healthy School District v. Doyle, 429 U.S. 274, 277, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). The Fifth Circuit Court of Appeals has recently provided some guidance in this area however. In Davis v. Passman, 571 F.2d 793 (5th Cir. 1978) (en banc), reversing panel opinion, 544 F.2d 865 (5th Cir. 1977), the Fifth Circuit was required to either "join other circuits in projecting the scope of Bivens to the Due Process Clauses of the fourteenth and fifth amendments, or decline to follow their precedent." 571 F.2d at 795 (footnote omitted). The plaintiff in Davis brought an action against former Louisiana Congressman Otto Passman claiming that she was dismissed as his Deputy Administrative Assistant based on her sex. She claimed that the dismissal violated the Due...