Anderson v. City of Miami

• Decision Date: 18 July 2011
• Docket Number: Case No. 11-CV-0132-CVE-TLW
• Parties: GARY L. ANDERSON, Plaintiff, v. CITY OF MIAMI, OKLAHOMA, a municipal corporation, Defendant.
• Court: U.S. District Court — Northern District of Oklahoma

GARY L. ANDERSON, Plaintiff, v. CITY OF MIAMI, OKLAHOMA, a municipal corporation, Defendant.

Case No. 11-CV-0132-CVE-TLW

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

DATED : July 18, 2011.

OPINION AND ORDER

Now before the Court is Defendant's Motion to Dismiss and Brief in Support (Dkt. # 11). Plaintiff Gary L. Anderson filed Plaintiff's Response to Motion to Dismiss (Dkt. # 13), and defendant City of Miami, Oklahoma filed a Reply in Support of Motion to Dismiss (Dkt. # 14).

I.

This case arises out of Anderson's termination from the City of Miami, Oklahoma (the City) police department on February 16, 2011. Dkt. # 2, at 2. Anderson, "the long-term police chief of the City's police department, filed an appeal within two days of his termination, demanding appeal rights under the Police Pension and Retirement System provided by OKLA. STAT. tit. 11, § 50-123.¹Id. In response, the City sent Anderson a letter stating that any appeal of his termination would belimited to review by the city manager. Id. Anderson subsequently filed his complaint,² in which he claims that defendant's actions violated 42 U.S.C. § 1983 and the Fifth and Fourteenth Amendments to the United States Constitution. Id. at 1. He claims that, as a result, he is entitled to approximately $500,000 as compensation for the loss of his former position, and that he has suffered emotional distress. Id. at 2. Consequently, he requests damages in the amount of $750,000 plus interest, as well as costs, attorney fees, and injunctive relief. Id. at 2.

Defendant filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), arguing that plaintiff failed to establish that the City's actions deprived him of a federal right, and that he failed to state a claim for procedural due process. Dkt. # 11. In plaintiff's response, he contends that he had properly stated a claim for both substantive and procedural due process. Dkt. # 13. Defendant filed a reply in support of the motion to dismiss. Dkt. # 14.

II.

"A motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) may take one of two forms." Muscogee (Creek) Nation v. Okla. Tax Comm'n, 611 F.3d 1222, 1227 n.1 (10th Cir. 2010). "A facial attack looks only to the factual allegations of the complaint in challenging the court's jurisdiction. A factual attack goes beyond the factual allegations of the complaint and presents evidence in the form of affidavits or otherwise to challenge the court's jurisdiction." Id. Defendant does not challenge the facts upon which subject matter jurisdiction depends, but rather whether plaintiff's allegations are sufficient to state a federal claim.Where a motion to dismiss is based on a facial attack, courts "apply the same standards under Rule 12(b)(1) that are applicable to a Rule 12(b)(6) motion to dismiss for failure to state a cause of action." Id.

In considering a motion under Rule 12(b)(6), a court must determine whether the claimant has stated a claim upon which relief may be granted. A motion to dismiss is properly granted when a complaint provides no "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Bell Atl. v. Twombly, 550 U.S. 544, 555 (2007). A complaint must contain enough "facts to state a claim to relief that is plausible on its face" and the factual allegations "must be enough to raise a right to relief above the speculative level." Id. (citations omitted). "Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Id. at 562. Although decided within an antitrust context, Twombly "expounded the pleadings standard for all civil actions." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953 (2009). For the purpose of making the dismissal determination, a court must accept all the well-pleaded allegations of the complaint as true, even if doubtful in fact, and must construe the allegations in the light most favorable to claimant. Twombly, 550 U.S. at 555; Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007); Moffett v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1231 (10th Cir. 2002). However, a court need not accept as true those allegations that are conclusory in nature. Erikson v. Pawnee Cnty. Bd. Of Cnty. Comm'rs, 263 F.3d 1151, 1154-55 (10th Cir. 2001). "[C]onclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Hall v. Bellmon, 935 F.3d 1106, 1109-10 (10th Cir. 1991).

III.

Defendant argues that plaintiff's complaint should be dismissed for failure to raise a federal question and failure to state a claim under § 1983. Plaintiff's complaint centers on the refusal of the City to provide him with the appeal to which he believes he is entitled under Okla. Stat. tit. 11, § 50-123. Dkt. # 2, at 2. It contains no allegations targeted at the sufficiency of the process provided to him by the City. Consequently, defendant argues that the complaint raises only a state law question of whether the City is required to comply with § 50-123, rather than a question of whether a federal right was violated. Dkt. # 11, at 3. Defendant argues that it was not required to comply with § 50-123, but that, even if it was, noncompliance with that section does not mean that plaintiff was denied procedural due process. Id. at 4.

A.

The Fourteenth Amendment to the United States Constitution prohibits a state from "depriv[ing] any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. The fundamental requirements of constitutional due process are notice and an opportunity to be heard. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). A person alleging that his right to procedural due process was violated must establish that "he possessed a constitutionally protected liberty or property 'interest such that the due process protections were applicable,' and that he was not 'afforded an appropriate level of process.'" Couture v. Bd. of Educ. of Albuquerque Pub. Sch., 535 F.3d 1243, 1256 (10th Cir. 2008)(quoting Zwygart v. Bd. of Cnty. Comm'rs of Jefferson Cnty., Kan., 483 F.3d 1086, 1093 (10th Cir. 2007)). A threshold requirement for a plaintiff alleging a violation of his procedural due process rights isthat the plaintiff possess a protected property interest. Doyle v. Okla. Bar Ass'n, 998 F.2d 1559, 1569 (10th Cir.1993).

Property interests are not derived from the Constitution but, instead, are created by independent sources such as state or local law. Stears v. Sheridan Cnty. Mem'l Hosp. Bd. of Trustees, 491 F.3d 1160, 1163 (10th Cir. 2007). In the employment context, "[a] property interest is determined by whether the terms of employment created by contract, federal statute, city charter or an employee manual create a sufficient expectancy of continued employment to constitute a property interest which must be afforded constitutionally guaranteed due process." Graham v. City of Okla. City, Okla., 859 F.2d 142, 146 (10th Cir. 1988). Plaintiff alleges that he was a member of the Oklahoma Police Pension and Retirement System, and that he was therefore entitled to the protections of § 50-123. That section prohibits discharge of a police officer except for cause. In re City of Durant, 50 P.3d 218, 221 (Okla. 2002). Consequently, the Oklahoma Supreme Court has determined that the section "accords members a legitimate expectation of continued employment until 'cause' for discharge is shown." Id. at 222. "An employee may possess a property interest in public employment if . . . state law allows dismissal only for cause or its equivalent." Darr v. Town of Telluride, Colo., 495 F.3d 1243, 1251 (10th Cir. 2007)(citing Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972)). Therefore, § 50-123 provides a protected property interest to those within its ambit.

Defendant contends that § 50-123 is not applicable to its employment decisions because, as a "home-rule city,"³ "it may follow its personnel policies for post-termination hearings, even forthose employees who are members of the Police Pension and Retirement System." Dkt. # 11, at 2. In support, it argues that a city charter supersedes conflicting state law on matters of purely municipal concern. Id. at n.2. While defendant's characterization of the home-rule doctrine is correct, the Durant court found that "[t]he protection of employment rights of policemen is not an issue of merely local municipal concern," because police protection "is unquestionably a matter of statewide interest." 50 P.3d at 222. And the parties have not addressed the City's exemption by way of a qualifying "civil service or merit system." Thus, there is an unanswered question of state law as to whether the City was required to abide by § 50-123; because the City may have obligations under that section, plaintiff has sufficiently alleged a protected property interest.

Plaintiff's only allegation in his complaint regarding the violation of his constitutional rights is that he was not given appeal rights mandated by § 50-123. "[A] breach of state procedural requirements is not, in and of itself, a violation of the Due Process Clause." Atencio v. Bd. of Educ. of Penasco Indep. Sch. Dist. No. 4, 658 F.2d 774, 779 (10th Cir. 1981). "It is not every disregard of its regulations by a public agency that gives rise to a cause of action for violation of constitutional rights. Rather, it is only when the agency's disregard of its rules results in a procedure which in itself impinges upon due process rights that a federal court should intervene in the decisional processes of state institutions." Id. Thus, "[w]hen state officials fail to comply with a state's procedural requirements, a plaintiff may only sue if that failure also violates the minimum requirement of a fair forum under the Due Process Clause." Archuleta v. City of Santa Fe, No. Civ. 04-0247JBDJS, 2005...