Buzek v. Pawnee County, Nebraska

• Decision Date: 16 April 2002
• Docket Number: No. 4:01CV3308.,4:01CV3308.
• Parties: Warren BUZEK, Plaintiff, v. PAWNEE COUNTY, NEBRASKA; Don Luedders; Gordon Clement; and Ferdinad Friedly, Defendants.
• Court: U.S. District Court — District of Nebraska

207 F.Supp.2d 961

Warren BUZEK, Plaintiff, v. PAWNEE COUNTY, NEBRASKA; Don Luedders; Gordon Clement; and Ferdinad Friedly, Defendants.

No. 4:01CV3308.

United States District Court, D. Nebraska.

April 16, 2002.

COPYRIGHT MATERIAL OMITTED

Carole J. McMahon-Boies, Pepperl, McMahon-Boies law Firm, Lincoln, NE, for plaintiff.

Terri M. Weeks, Richard L. Boucher, Boucher Law Firm, Lincoln, NE, for defendants.

MEMORANDUM AND ORDER

KOPF, District Judge.

This matter is before the court on the defendants' motion to dismiss (filing 10), filed pursuant to Fed.R.Civ.P. 12(b)(1) and (6). The motion will be granted in part and denied in part.

I. Plaintiff's Allegations

The plaintiff, Warren Buzek, was employed as a deputy in the Pawnee County Sheriff's Department until March 28, 2001, when he was terminated by the sheriff, allegedly at the behest of the individual defendants, Don Luedders, Gordon Clement, and Ferdinand Friedly, who comprise the county board of commissioners. Buzek, who unsuccessfully sought appointment to the sheriff's position in January 2001, alleges that his failure to win the promotion was due in part to the fact that he had supported the former sheriff during a recall campaign by the county board. Buzek also cites his support of the former sheriff as being a factor in his termination, together with: (1) his criticism that the new sheriff appointed by the board had a history of DWI convictions; (2) his investigation and reporting of an automobile accident involving commissioner Friedly; and (3) his statement at a county board meeting that 911 calls were not being responded to because of a protest over the former sheriff's firing of commissioner Luedders' wife from her job as dispatcher. Buzek also claims that the termination violated the county's personnel policies and was done by the commissioners in contravention of Nebraska's public meetings law Neb.Rev.Stat. Ann. §§ 84-1408 to 84-1414 (Lexis 2000 & Supp.2001).

Buzek asserts six claims for relief: (1) an equal protection claim, based upon Buzek's membership in a class of individuals "who had supported the previous Sheriff whose position with Pawnee County had been terminated"; (2) a due process claim, based upon the defendants' alleged violation of personnel policies and the public meetings law; (3) a first amendment "freedom-of-speech" claim, based upon Buzek's expressions of concern regarding the new sheriff's DWI convictions, commissioner's Friedly's accident report, and the lack of 911 response in the county; (4) a state-law claim for violation of the public meetings law; (5) a state-law claim for wrongful discharge; and (6) a first amendment "freedom-of-association" claim, based upon Buzek's support of the previous sheriff.

The constitutional claims are brought under 42 U.S.C. § 1983, as to which the court has original jurisdiction under 28 U.S.C. § 1343. The equal protection claim (count 1) concerns both the termination of Buzek's employment as deputy sheriff and his failure to receive the sheriff's appointment, while the due process claim (count 2) and the first amendment retaliation claims (counts 3, 6) are concerned only with the termination.¹ The state-law claims (counts 4, 5), as to which the plaintiff alleges the court has supplemental jurisdiction under 28 U.S.C. § 1367, also relate only to the termination.

II. Defendants' Motion

Pawnee County has moved to dismiss the equal protection claim and first amendment claims (counts 1, 3, and 6) for plaintiff's failure to allege that the constitutional deprivations resulted from a county policy, and to dismiss the wrongful discharge claim (count 5) as non-actionable. The individual defendants have also moved to dismiss the equal protection claim (count 1) and the wrongful discharge claim (count 5) under Rule 12(b)(6). All defendants claim that the court lacks subject matter jurisdiction over the public meetings law claim (count 4).

A. Public Meetings Law Claim

I first consider the jurisdictional issue. The defendants contend that a suit claiming a violation of the Nebraska public meetings law can only be brought in state court, as provided in Neb.Rev.Stat. Ann. § 84-1414(3) (Lexis 2000).² Buzek, however, attempts to bring suit on this claim under Neb.Rev.Stat. Ann. § 20-148(1) (Michie 1995), which generally provides that "[a]ny person ..., except any political subdivision, who subjects or causes to be subjected any citizen of this state ... to the deprivation of any rights, privileges, or immunities secured by the United States Constitution or the Constitution and laws of the State of Nebraska, shall be liable to such injured person in a civil action or other proper proceeding for redress brought by such injured person." I conclude that both of these legal positions are wrong.

Section 20-148 "does not purport to create new causes of action or rights but merely provides a civil avenue of recovery for violations of constitutional or statutory civil rights provisions." Ritchie v. Walker Mfg. Co., 963 F.2d 1119, 1122 (8th Cir.1992). See, also, Goolsby v. Anderson, 250 Neb. 306, 313, 549 N.W.2d 153, 157 (1996) (Section 20-148 "is a procedural statute which does not create any new substantive rights."). Thus, in order to maintain suit under section 20-148, Buzek must show that he has been deprived of some right, privilege, or immunity secured by the public meetings law.

Buzek alleges only that "[t]he decision resulting in the termination of the petitioner's job was done outside of a Commission's meeting by the three individually named Respondent's (sic) and is prohibited by the Open Meetings Law 94-1408 R.R.S. (sic) which is actionable under 20-148 RRS." (Complaint, filing 1, ¶ 22.) While section 84-1408 requires that "[e]very meeting of a public body shall be open to the public in order that citizens may exercise their democratic privilege of attending and speaking at meetings of public bodies," and section 84-1411 provides that "the public shall have the right to attend and the right to speak at meetings of public bodies," Buzek is not claiming injury because he was denied the right or privilege of attending and speaking at a meeting of the county board. Buzek's complaint, rather, is that "the decision to terminate [his] job was made outside of the meetings required by the Nebraska law and was done without the notices required under the Nebraska open meetings law." (Complaint, ¶ 12.) In essence, he is claiming that the commissioners conducted an unlawful meeting, which led to his termination. See, e.g., Aldridge v. School Dist. of North Platte, 225 Neb. 580, 581-83 407 N.W.2d 495, 496-97 (1987) (involving citizen's claim that quorum of school board members improperly met to discuss superintendent's suspension). This alleged public meetings law violation also forms a partial basis for Buzek's due process claim. (Complaint, ¶ 15.)

Even if the complaint could be construed to allege a deprivation of Buzek's civil rights under the public meetings law, an action cannot be brought against the county under section 20-148.³ Nor does this section apply to individuals acting in their capacities as public officials. Cole v. Clarke, 8 Neb.App. 614, 620, 598 N.W.2d 768, 772 (1999) (dismissing personal injury claim brought against prison officials); Sinn v. City of Seward, 3 Neb.App. 59, 77, 523 N.W.2d 39, 50 (1994) (dismissing wage claim by city employee brought against city administrator and city council members). As a matter of pleading necessity, the alleged decision to terminate Buzek must have been made by the individual defendants acting in their collective official capacity, meeting as the county board of commissioners, for otherwise there could be no possible violation of the public meetings law (which applies only to the meetings of a "public body").⁴ Consequently Buzek's public meetings law claim (count 4) is not actionable under section 20-148.

To the extent that Buzek has stated a claim for relief that is actionable under section 84-1414, an issue which I purposely do not decide,⁵ this court has subject matter jurisdiction over such claim by virtue of 28 U.S.C. § 1367(a). Subject to certain exceptions that are not applicable here, this statute provides in part: "[I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." Thus, as restated by the Court of Appeals: "A district court may exercise supplemental jurisdiction over state law claims that arise from the same nucleus of operative fact as the plaintiff's federal claims and when the plaintiff would ordinarily be expected to try all the claims in one judicial proceeding." Cossette v. Minnesota Power & Light, 188 F.3d 964, 973 (8th Cir. 1999). I conclude that this pleading situation exists here, although, as discussed above, Buzek's public meetings law claim cannot properly be classified as a civil rights claim.

The fact that section 84-1414(3) specifies that a suit may be commenced "in the district court of the county in which the public body ordinarily meets or in which the plaintiff resides" does not deprive the federal court of jurisdiction. In the first place, this appears to be a venue statute rather than a jurisdictional statute. By permitting a citizen suit to be brought in the plaintiff's county of residence, section 84-1414(3) is more expansive than the general venue statute, Neb.Rev.Stat. Ann. § 25-403.01 (Michie 1995).⁶ This strongly suggests that the purpose of the statute is to provide for venue rather than to establish jurisdiction. See Muir v. Nebraska Department of Motor Vehicles, 260 Neb. 450, 456, 618 N.W.2d 444, 449 (2000) (flexibility inherent in statute regarding conduct of license revocation hearings indicated venue rather than...