Arrington v. Dickerson

• Decision Date: 07 December 1995
• Docket Number: Civil Action No. 94-D-1593-N.
• Citation: 915 F. Supp. 1503
• Parties: Leonard Q. ARRINGTON, Sr., Plaintiff, v. Joseph DICKERSON, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

915 F. Supp. 1503

Leonard Q. ARRINGTON, Sr., Plaintiff, v. Joseph DICKERSON, et al., Defendants.

Civil Action No. 94-D-1593-N.

United States District Court, M.D. Alabama, Northern Division.

December 7, 1995.

COPYRIGHT MATERIAL OMITTED

Will R. Kelly, Hayneville, AL, Leonard Q. Arrington, Montgomery, AL, Thomas R. Fields, III, Hayneville, AL, for plaintiff.

Thomas C. Tankersley, Montgomery, AL, Mark Englehart, Kenneth L. Thomas, Montgomery, AL, for defendants.

MEMORANDUM OPINION AND ORDER

DE MENT, District Judge.

Before the court is the defendants Joseph Dickerson, Richard Moncus, Bud Chambers, Billy M. Turner, Joe L. Reed, Mark Gilmore, Jr., Leu W. Hammonds, Alice D. Reynolds, Rick McBride, and City of Montgomery, Alabama's motion filed January 31, 1995, to dismiss the above-styled case. The plaintiff responded in opposition on October 26, 1995.

For the reasons asserted herein, the court finds that the defendants' motion to dismiss for failure to state a claim arising under the Fifth Amendment is due to be granted. The court also finds that defendants' motion to dismiss the claims against the City Council members in their official capacities on the ground of absolute immunity is due to be granted. Further, the court finds that the defendants' motion claiming that the complaint fails to state a substantive due process claim, a procedural due process claim and an equal protection claim is also due to be granted. However, the court finds that the defendants' motion claiming that the complaint fails to state a First Amendment claim against the City of Montgomery is due to be denied. Moreover, the court will reserve ruling on the qualified immunity defense until the plaintiff has responded to the issues contained in this memorandum opinion and order. As such, the court finds that the defendants' 12(b)(6) motion to dismiss the § 1983 claim alleging a violation of the First Amendment against the City Council members in their individual capacities is due to be granted without prejudice and with leave to file an amended complaint.

STANDARD OF REVIEW FOR MOTION TO DISMISS

Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a defendant may move to dismiss a complaint on the ground that the plaintiff has failed to state a claim upon which relief may be granted. A Rule 12(b)(6) motion questions the legal sufficiency of a complaint; therefore, in assessing the merit of a Rule 12(b)(6) motion, the court must assume that all the factual allegations set forth in the complaint are true. See, e.g., United States v. Gaubert, 499 U.S. 315, 327, 111 S.Ct. 1267, 1276, 113 L.Ed.2d 335 (1991); Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir.1990). Moreover, all factual allegations are to be construed in the light most favorable to the plaintiff. See e.g., Sofarelli v. Pinellas County, 931 F.2d 718, 721 (11th Cir.1991); see also Brower v. County of Inyo, 489 U.S. 593, 598, 109 S.Ct. 1378, 1382, 103 L.Ed.2d 628 (1989).

On a motion to dismiss for failure to state a claim upon which relief may be granted, the movant "sustains a very high burden."¹ Jackam v. Hospital Corp. of America Mideast, Ltd., 800 F.2d 1577, 1579 (11th Cir. 1986) (citing Currie v. Cayman Resources Corp., 595 F.Supp. 1364, 1376 (N.D.Ga.1984)). The Court of Appeals for the Eleventh Circuit has held, "motions to dismiss for failure to state a claim should be denied unless it appears beyond doubt that the plaintiff can prove no set of facts in support of its claims." Jackam, 800 F.2d at 1579 (quoting Bracewell v. Nicholson Air Servs., Inc., 680 F.2d 103, 104 (11th Cir.1982)); see also Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 (1984).

PROCEDURAL FACTS AND HISTORY

On January 4, 1994, the plaintiff, Leonard Q. Arrington (hereafter "Mr. Arrington"), and his representative appeared before the Montgomery City Council in an attempt to gain approval for a package store license and to answer any questions from the City Council. Pl.'s Compl. at ¶ 14. Mr. Arrington's application was rejected by the City Council at this meeting on January 4, 1994. Id. at ¶ 15. The City Council's stated reason for the denial of the package store license was that the "Rosa Parks area does not need another package store." Id. at ¶ 18. In fact, there are five other stores in the immediate area of 517 Rosa L. Parks Avenue which are licensed to sell alcoholic beverages. Id. at ¶¶ 4-6. This area includes a State owned and operated liquor store located within fifty feet of the 517 Rosa L. Parks Avenue property. Id. at ¶ 5.

Notwithstanding the close proximity of these stores to Mr. Arrington's location, Mr. Arrington contends that the real reason for his denial of a retail liquor license was the City Council's decision to retaliate against him for his questioning of a City official regarding several parcels of property in Councilman Mark Gilmore's (hereafter "Mr. Gilmore") district.²Id. at ¶ 19. Mr. Arrington further asserts that Mr. Gilmore had predetermined that the package store license would not be issued. Id.

Prior to the time Mr. Arrington applied for a retail liquor license, he telephoned and wrote a letter to a City official regarding several parcels of property located in Mr. Gilmore's district which were owned by a client of Mr. Arrington. Id. at ¶ 9. Specifically, Mr. Arrington complained that his client allegedly had been over charged by the City for the abatement of weeds. Id. Sometime after the letter was sent, but prior to the telephone call and prior to Mr. Arrington's application for a retail liquor license, Mr. Gilmore called Mr. Arrington to complain of the above mentioned letter, which was forwarded to him. Id. at ¶ 8. In the telephone conversation, Mr. Gilmore allegedly became very belligerent and hostile. Id. He also stated that he was very familiar with Judges and other influential people and therefore, he would see to it that Mr. Arrington's business would be removed from Rosa L. Parks Avenue. Id. Subsequent to the telephone call by Mr. Arrington to the City official, Mr. Arrington received another telephone call from Mr. Gilmore, wherein Mr. Gilmore was again very hostile and stated again that he would see to it that Mr. Arrington's business at 517 Rosa L. Parks Avenue be closed. Id. at ¶ 10.

Thereafter, on December 21, 1993, Mr. Arrington filed an application for a retail liquor license with the City of Montgomery. Id. at ¶ 11. Subsequent to this application for the license, but prior to the City Council meeting, Mr. Arrington was told by the City Clerk that Mr. Gilmore had made a statement that Mr. Gilmore would "block" the issuance of a package store license for Mr. Arrington. Id. at ¶ 13. Following the January 4, 1994, hearing before the City Council, Mr. Arrington was told that Mr. Gilmore had solicited two people to speak against the approval of the package store. Id. at ¶ 17. Furthermore, again following the January 4, 1994, hearing before the City Council, Mr. Arrington spoke with the City Clerk at a local business on High Street in Montgomery, Alabama, where he was told the following by the clerk, "I told you before that your license would not be approved, because Mark Gilmore had spoken with Joe Reed, Dickerson, and Hammonds and had decided to block your license." Id. at ¶ 16. The City Clerk also told Mr. Arrington that his application was rejected, because he had made Mr. Gilmore very angry and upset regarding another matter separate and independent of the package store application. Id. at ¶ 21. The Clerk went on to say that the only way that Mr. Arrington could obtain approval of a package store license was to make amends with Mr. Gilmore. Id.

Mr. Arrington contends that requiring him to get approval from Mr. Gilmore as a prerequisite to obtaining City Council approval for such a liquor license violates the United States Constitution. Id. at ¶ 22. Specifically, he contends that these procedures, or lack of consistent procedures, violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Id. at ¶ 23. He also asserts that the defendants have violated his First and Fifth Amendment rights.³ Furthermore, he contends that the defendants have violated his procedural and substantive due process rights under the Fourteenth Amendment. In his response to the defendants' motion to dismiss, Mr. Arrington states that he is seeking injunctive relief against the defendants in their official capacities and damages against them in their individual capacities. He attempts to enforce these rights through 42 U.S.C. § 1983.

The defendants move the court to dismiss this action on numerous grounds. The court will separately address the following contentions of the defendants: (1) the defendant City Council members are entitled to absolute immunity; (2) the complaint fails to state a substantive or procedural due process claim upon which relief may be granted; (3) the complaint fails to state an equal protection claim upon which relief may be granted; (4) the complaint fails to state a First Amendment claim upon which relief may be granted; and in the alternative, (5) each individual defendant is entitled to qualified immunity from damages and suit in his or her individual capacity on the ground of qualified immunity.

DISCUSSION

A. Official Capacity Suit

The court will first address the defendants' contention that they are entitled to absolute immunity. Defs' Mot. to Dis. at ¶ 15. The Eleventh Circuit has recognized such an immunity in favor of local legislators for conduct in furtherance of their legislative duties. Hudgins v. City of Ashburn, 890 F.2d 396, 406 n. 20 (11th Cir.1989); see also Baytree of Inverrary Realty Partners v. City of Lauderhill, 873 F.2d 1407, 1409 (11th Cir. 1989); Espanola Way Corp. v. Meyerson, 690 F.2d 827, 829 (11th Cir.1982), cert. denied, 460 U.S. 1039, 103 S.Ct. 1431, 75 L.Ed.2d 791 (1983). Also, in extrapolating precedent from the Supreme Court...