Carpenter v. City of Fort Wayne, Ind., Civ. No. F 85-5 to F 85-7.

• Decision Date: 17 June 1986
• Docket Number: Civ. No. F 85-5 to F 85-7.
• Citation: 637 F. Supp. 889
• Parties: Donald J. CARPENTER, Plaintiff, v. The CITY OF FORT WAYNE, INDIANA, et al., Defendants. Robert BAALS, Thomas Reich and William Heath, Plaintiffs, v. The CITY OF FORT WAYNE, INDIANA, et al., Defendants. Cecil BLAIN, Plaintiff, v. The CITY OF FORT WAYNE, INDIANA, et al., Defendants.
• Court: U.S. District Court — Northern District of Indiana

637 F. Supp. 889

Donald J. CARPENTER, Plaintiff, v. The CITY OF FORT WAYNE, INDIANA, et al., Defendants.

Robert BAALS, Thomas Reich and William Heath, Plaintiffs, v. The CITY OF FORT WAYNE, INDIANA, et al., Defendants.

Cecil BLAIN, Plaintiff, v. The CITY OF FORT WAYNE, INDIANA, et al., Defendants.

Civ. Nos. F 85-5 to F 85-7.

United States District Court, N.D. Indiana, Fort Wayne Division.

June 17, 1986.

Larry J. Burke, Fort Wayne, Ind., for plaintiff.

Bruce Boxberger and Karen S. Walker, Fort Wayne, Ind., for defendants.

ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court on motions for summary judgment filed by the defendants in these actions. Although these actions have not been formally consolidated, the various plaintiffs are all represented by the same counsel, and the pleadings of the parties directed to these motions which were filed in the separate actions are virtually identical. The plaintiffs filed a brief in opposition to the motion, and the defendants filed a reply. The plaintiffs then requested leave to file a supplemental brief in opposition on the issue of the retroactive application of Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). Such leave was granted, and both the plaintiffs and defendants have filed supplemental briefs on the issue. For the following reasons, defendants' motions for summary judgment will be granted.

This cause arises out of the demotion of the plaintiffs in their rank as members of the Fire Department of the City of Fort Wayne in February 1980. The essence of the plaintiffs' complaints is that they were demoted because of their political affiliation in violation of the first and fourteenth amendments. The defendants have moved for summary judgment, contending that these claims are time-barred by the two year statute of limitations for personal injury actions in Indiana, I.C. 34-1-2-2, which governs claims brought under 42 U.S.C. § 1983 by virtue of the Wilson decision.

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment may only be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Thus, summary judgment serves as a vehicle with which the court "can determine whether further exploration of the facts is necessary." Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975).

In making this determination, the court must keep in mind that the entry of summary judgment terminates the litigation, or an aspect thereof, and must draw all inferences from the established or asserted facts in favor of the non-moving party. Munson v. Friske, 754 F.2d 683, 690 (7th Cir.1985). The non-moving party's reasonable allegations are to be accepted as true for purposes of summary judgment. Yorger v. Pittsburgh Corning Corp., 733 F.2d 1215, 1218-19 (7th Cir.1984). A party may not rest on the mere allegations of the pleadings or the bare contention that an issue of fact exists. Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983). See Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). See also Atchison, Topeka & Santa Fe Railway Co. v. United Transportation Union, 734 F.2d 317 (7th Cir.1984); Korf v. Ball State University, 726 F.2d 1222 (7th Cir.1983). See generally C. Wright, Law of Federal Courts, § 99 (4th ed. 1983); 6 Moore's Federal Practice, § 56.15 (2d ed. 1984).

Thus, the moving party must demonstrate the absence of a genuine issue of material fact. Even if there are some disputed facts, where the undisputed facts are the material facts involved and those facts show one party is entitled to judgment as a matter of law, summary judgment is appropriate. Egger v. Phillips, 710 F.2d 292, 296-97 (7th Cir.1983); Collins v. American Optometric Assn., 693 F.2d 636, 639 (7th Cir.1982). See also Bishop v. Wood, 426 U.S. 341, 348, 348 n. 11, 96 S.Ct. 2074, 2079, 2079 n. 11, 48 L.Ed.2d 684 (1976).

Based upon these principles, the relevant facts of this case are as follows. Prior to February 1, 1980, the plaintiffs were lieutenants in the Fort Wayne Fire Department. In January 1980, a Democratic administration assumed control of the city government in Fort Wayne, and appointed defendant Anthony J. Meyers to the office of Fire Chief. On February 1, 1980, the plaintiffs were demoted to the rank of private.

The plaintiffs filed their complaints on January 7, 1985, one month shy of five years after the demotions occurred. In their complaints, the plaintiffs contend that their demotions were a result of their nonmembership in the Democratic party, and were done pursuant to a policy or custom of the defendants to demote members of the Fire Department who were not members of the Democratic party and replace them with persons who were so affiliated. This, plaintiffs argue, constituted a violation of the first and fourteenth amendments as well as 42 U.S.C. § 1983. In addition, the complaints allege that the demotions were without just cause and was given without notice or hearing, thereby violating plaintiffs' due process rights. The plaintiffs seek injunctive relief and money damages.

The defendants filed this motion for summary judgment, urging that the court find the complaints barred by the two year statute of limitations for personal injury actions. The defendants' motion is based on three arguments: (1) that the two year statute of limitations bars plaintiffs' § 1983 claims; (2) that the plaintiffs cannot bring a claim directly under the Constitution, but rather must bring their claim under § 1983; and (3) even if the plaintiffs could bring claims directly under the Constitution, such claims would be held to the same statute of limitations as § 1983, and thus would be time-barred. The plaintiffs appeared at first to concede that the two year statute applied to the § 1983 claims, but have since argued that the Wilson decision should not be applied retroactively, thereby entitling them to a five year period of limitation. They have also argued that they can bring claims directly under the Constitution, and have offered a wide variety of possible statutes of limitations which could apply to such a claim.

The court will begin with the defendants' second argument first, examining whether the plaintiffs can bring a cause of action directly under the Constitution, and then will consider the appropriate statute of limitations to apply.

Direct Constitutional Claims — Bivens and § 1983

The complaints in these causes appear to assert violations of the Constitution as well as § 1983. The original motion for summary judgment is the first place that these direct constitutional claims are classified as "Bivens-type" claims, after Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Thereafter, the plaintiffs picked up this nomenclature and began calling their direct constitutional claims Bivens claims. The court concludes that the plaintiffs are in fact attempting to assert Bivens claims against the various defendants by asserting that violations of the first and fourteenth amendments occurred which entitle them to relief independent of § 1983.

The essence of the defendants' second argument in favor of the motion for summary judgment is that the plaintiffs cannot assert Bivens claims when a § 1983 action is available. In effect, the defendants assert that the direct constitutional claims collapse into and are a part of the § 1983 claims, so that these are simply § 1983 actions.

Bivens established that victims of a constitutional violation by a federal agent have the right to recover damages against that official despite the absence of any statute conferring such a right. However, the Supreme Court has held that a Bivens cause of action can be defeated "when Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective." Carlson v. Green, 446 U.S. 14, 18-19, 100 S.Ct. 1468, 1471, 64 L.Ed.2d 15 (1980). At least two courts have found that § 1983 satisfies this Carlson criteria. See Morris v. Washington Metropolitan Area Transit Authority, 702 F.2d 1037, 1042 and n. 10 (D.C.Cir.1983); Williams v. Bennett, 689 F.2d 1370, 1390 (11th Cir.1982), cert. denied, 464 U.S. 932, 104 S.Ct. 335, 78 L.Ed.2d 305 (1983). Even the Carlson Court, in analyzing whether the Federal Tort Claims Act met the criteria necessary to justify displacement of a Bivens action, used § 1983 as a contrasting statute, finding that § 1983 had a purpose and provided damages similar to Bivens, thereby suggesting that § 1983 was an equally effective substitute for a Bivens action. The court concludes that § 1983 is an effective remedy for plaintiffs' constitutional claims so as to defeat the existence of a Bivens action in this case.

A second argument against recognizing a Bivens claim in these cases is that none of the defendants here are federal agents or actors. As the Morris court stated:

The availability of a Bivens-type Fourteenth Amendment remedy against non-federal defendants is subject to serious question. The Supreme Court has explicitly reserved decision on the question. Mt. Healthy Bd. of Educ. v. Doyle, 429 U.S. 274, 278, 97 S.Ct. 568, 571 50 L.Ed.2d 471 (1977); see Lake County Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391 398-400, 99 S.Ct. 1171, 1175-77 59 L.Ed.2d 401 (1979). Moreover, in view of the Court's decision in Monell v. Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018 56 L.Ed.2d 611 (1978), holding that political subdivisions of states are "persons" subject to suit under § 1983, it seems unlikely that the federal courts will feel free to imply a direct

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