Cook v. Board of Sup'rs of Lowndes County, Miss.

• Decision Date: 04 June 1992
• Docket Number: Civ. A. No. EC 91-156-D-D.
• Parties: Charles L. COOK d/b/a Cook's Ambulance Service, Inc., a Mississippi Corporation, Plaintiff, v. BOARD OF SUPERVISORS OF LOWNDES COUNTY, MISSISSIPPI, et al., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

806 F. Supp. 610

Charles L. COOK d/b/a Cook's Ambulance Service, Inc., a Mississippi Corporation, Plaintiff, v. BOARD OF SUPERVISORS OF LOWNDES COUNTY, MISSISSIPPI, et al., Defendants.

Civ. A. No. EC 91-156-D-D.

United States District Court, N.D. Mississippi, E.D.

June 4, 1992.

COPYRIGHT MATERIAL OMITTED

Ronald D. Michael, Booneville, Miss., for plaintiff.

Armstrong Walters, Columbus, Miss., for defendants.

MEMORANDUM OPINION

DAVIDSON, District Judge.

Plaintiff corporation, Cook's Ambulance Service, Inc. ("Cook"), is suing under 42 U.S.C. § 1983, alleging a constitutional deprivation of due process.¹ Pursuant to Fed.R.Civ.P. 12(b)(1), defendants Lowndes County Board of Supervisors ("Board"), et alia move this court to dismiss the § 1983 complaint for lack of subject matter jurisdiction. Included with defendant Board's motion is its answer asserting collateral estoppel, res judicata and failure to state a claim² upon which relief can be granted as affirmative defenses. (Defs.' Answer, p. 4 of unnumbered pages.) Based upon a thorough review of the parties' pleadings, the court is of the opinion that principles of res judicata and claim preclusion are operable. Furthermore, plaintiff's § 1983 complaint is not viable. Therefore, the cause of action is dismissed with prejudice.

I. Factual Summary and Procedural Background

Plaintiff, a private corporation, had been providing Lowndes County with ambulance services for approximately four years under a contract with defendant Board of Supervisors that expired April 1, 1988. Rather than renew the agreement, defendants passed a resolution to obtain ambulance services through the Golden Triangle Regional Medical Center (GTRMC), a public agency established in 1942. Consequently, plaintiff petitioned the Lowndes County Circuit Court for a writ of prohibition on or about February 10, 1988. In support of its petition, plaintiff relied on a state law provision favoring privately run ambulance services deemed adequate over publicly run operations. See Miss.Code Ann. § 41-55-7. The Circuit Court denied the petition and plaintiff appealed. The Mississippi Supreme Court reversed and remanded, holding that defendants failed to determine the adequacy of plaintiff's ambulance services within the meaning of § 41-55-7.

With its state action underway, plaintiff subsequently filed its § 1983 complaint of alleged due process violations in this federal district court on or about May 30, 1991. According to defendants, plaintiff's complaint concerns an alleged violation of a state created right, placing it outside the parameters of 42 U.S.C. § 1983. Invoking the doctrine of collateral estoppel, defendants contend plaintiff's § 1983 complaint is identical to the prior state court cause of action and therefore cannot be relitigated in federal court. Plaintiff, of course, refutes defendants' collateral estoppel theory, claiming the § 1983 complaint concerns due process violations raised for the first time in the federal litigation. Aside from collateral estoppel, defendants argue res judicata precludes plaintiff from pursuing a separate § 1983 complaint in a federal forum after litigating a similar cause of action in state court. In response, plaintiff asserts it lacked a full and fair opportunity to litigate the federal claim in state court and therefore should be permitted to proceed with its § 1983 action.

II. Legal Discussion

A. The 12(b)(1) Motion to Dismiss Treated As a 12(c) Motion for Judgment on the Pleadings

Although entitled, "Motion to Dismiss for Lack of Jurisdiction," defendants' motion seeks a judgment on the pleadings. Motions for judgment on the pleadings are properly brought via Fed.R.Civ.P. 12(c). However, it is permissible to treat motions to dismiss as motions for judgment on the pleadings if the pleadings have been closed. 2A JAMES WILLIAM MOORE, MOORE'S FEDERAL PRACTICE par. 12.15 (2d ed. 1991). If no counterclaims or cross-claims are pleaded in the answer, the pleadings are considered closed, unless the court orders a reply. Id. Although the pleadings appear to be closed in the instant case, the court nevertheless declines to treat defendants' motion to dismiss as a request for judgment on the pleadings.

B. Treating 12(b)(1) Motions as 12(b)(6) Motions

When possible, courts generally strive to decide cases on the merits. Dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction is not on the merits. MOORE, supra, par. 12.07 2.-1. Therefore, when presented with a 12(b)(1) motion to dismiss arguing the absence of a federal question, courts generally agree the preferable practice is to assume jurisdiction exists and proceed under 12(b)(6) in order to reach the merits of the case. MOORE, supra. See Jones v. State of Georgia, 725 F.2d 622 (11th Cir.1984), cert. denied, 469 U.S. 979, 105 S.Ct. 380, 83 L.Ed.2d 316 (If party moves under both Rules 12(b)(1) and 12(b)(6) and 12(b)(1) motion challenges existence of federal cause of action, courts generally find jurisdiction and proceed under 12(b)(6) to determine merits). By following this approach, the court provides plaintiff with added protection, considering that all of plaintiff's factual allegations are presumed to be true under 12(b)(6). MOORE, supra; see Williamson v. Tucker, 645 F.2d 404 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981) (determining questions under 12(b)(6) rather than 12(b)(1) grants additional protection to plaintiff). Since defendants raise a 12(b)(6) defense in their answer, the court will treat the 12(b)(1) motion to dismiss for lack of subject matter jurisdiction as a 12(b)(6) motion to dismiss for failure to state a claim.

C. The 12(b)(6) Motion to Dismiss Standard

In ruling on a 12(b)(6) motion to dismiss, the court must afford the plaintiff every reasonable inference in favor of stating a prima facie case for recovery. Thus, a complaint may not be dismissed unless it appears certain that no relief can be granted under any set of facts in support of plaintiff's allegations. See Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

D. 42 U.S.C. § 1983

By definition, "§ 1983 does not create substantive rights; rather, it merely provides a remedy for deprivations" of federal constitutional rights. San Jacinto Sav. & Loan v. Kacal, 928 F.2d 697, 700 (5th Cir. 1991). The statutory provision imposes civil liability only upon persons "who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subject, or cause to be subjected, any citizen ... to the deprivation of any rights, privileges or immunities secured by the Constitution and laws ..." 42 U.S.C. § 1983. As a prerequisite to maintaining a § 1983 claim, plaintiff must establish: 1) that defendants were acting under color of state law, and 2) that while acting under color of state law, the defendants violated plaintiff's rights protected by the United States Constitution or United States laws. McDonald v. Board of Mississippi Levee Commissioners, 646 F.Supp. 449, 462 (N.D.Miss.1986), aff'd, 832 F.2d 901 (5th Cir.1987), citing Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981) (overruled on other grounds in Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)); Augustine v. Doe, 740 F.2d 322, 324 (5th Cir.1984). Plaintiff Cook asserts it is entitled to redress pursuant to § 1983 based on defendants' alleged violation of Mississippi law. Specifically, plaintiff claims defendants failed to follow § 41-55-7 entitled, "Effect of existence of adequate private ambulance service; public subsidies." The provision states:

If there is in operation an adequate privately run ambulance service, then the governing authorities are hereby prohibited from contracting for ambulance services to be run by the public body. The governing authorities may, however, subsidize such existing privately run ambulance service, in their discretion, if they deem necessary to keep such service in operation.

§ 41-55-7. Defendants decided to drop plaintiff without determining whether plaintiff was providing adequate services within the meaning of Mississippi law. Failure to do so, plaintiff argues, "constitutes a deprivation of plaintiff's federally protected rights without due process." (Pl.'s Compl. par. XVII.)

Violation of a state law ordinarily is not cognizable under § 1983. Schepp v. Fremont County, Wyo., 685 F.Supp. 1200, 1203, (D.Wyo.1988), aff'd, 900 F.2d 1448 (10th Cir.1990). However, when a state statute supplies the basis for the constitutional claim, it may be cognizable. Id. For instance, state law can create a property interest protected by the Fourteenth Amendment due process clause. See, e.g., Davis v. Scherer, 468 U.S. 183, 193, 104 S.Ct. 3012, 3018, 82 L.Ed.2d 139 (1984); Arcoren v. Peters, 829 F.2d 671, 676-77 (8th Cir.1987); Myers v. Morris, 810 F.2d 1437, 1470 (8th Cir.1987); Pollnow v. Glennon, 757 F.2d 496, 501 (2nd Cir.1985). Thus, the immediate questions for the court are whether § 41-55-7 creates a property interest, and if so, whether plaintiff has been deprived of it without due process.

E. Plaintiff's Due Process Claim

Plaintiff's complaint contains a vague claim of due process violations. It fails to specify whether the suffered deprivation concerns substantive or procedural due process. From what the court can glean from the complaint, it appears that plaintiff ambulance service operation objects to the nonrenewal of its contract as violating the state law prohibition against a publicly run ambulance operation when adequate private service is available. (Pl.'s Compl., par. XVI-XVII). "An alleged violation of state law unaccompanied by some more precise claim of federal right than a general claim of lack of due process is not the sort of deprivation recognizable under 42 U.S.C. § 1983." Housley v. North Panola Consol. School Dist., 656 F.Supp. 1087, 1092 (N.D.Miss.1987) citing McDowell v. Texas, 465...