Estep v. City Of Somerset

Decision Date08 March 2011
Docket NumberCivil Action No. 10-286-ART
PartiesROGER ESTEP, Plaintiff, v. CITY OF SOMERSET, KENTUCKY, et al., Defendants.
CourtU.S. District Court — Eastern District of Kentucky

Although the proverbial legal apple usually allows only one bite, sometimes a second bite is appropriate. The defendants here want that second bite at the apple. The Court previously denied their motion to dismiss the plaintiff, Roger Estep's, procedural due process claims. R. 6. Now, after answering, R. 7, the defendants have filed a motion for judgment on the pleadings raising new arguments in favor of dismissing those claims. R. 10. Because the defendants' motion is procedurally proper and cites to legal authority clearly establishing that Estep's procedural due process claims should be dismissed, the motion is granted.


The Court's prior Memorandum Opinion and Order, R. 6, sets forth the full factual background of this case. A brief refresher will do here. Estep is a patrol officer with the Somerset Police Department. Two sergeant positions opened up within the department during the summer of 2009. After completing the application process for those positions, Estep had the second highest overall score. But the Mayor of Somerset, Eddie Girdler, did not promote him. Estep alleges that it was because he had supported an opposition candidate during the 2006mayoral election. Later, in March 2010, Estep received an oral reprimand for leaving a K-9 officer training session early and for refusing to utilize his K-9 when requested on patrol. R. 3, Attach. 3. Estep refused to sign an acknowledgment of this oral reprimand, so he received a formal written reprimand. R. 3, Attach. 4. He then refused to sign the written reprimand, so he received an administrative warning. R. 3, Attach. 5. Estep asked for a hearing before the city council to contest the reprimands, but that request was denied.

Estep filed a complaint in this Court on October 20, 2010, claiming that the defendants violated his rights to free speech and procedural and substantive due process under the state and federal constitutions. The defendants filed a motion to dismiss, which the Court granted in part and denied in part on December 21, 2010. R. 6. The Court dismissed Estep's substantive due process claim, id. at 8-10, but allowed his First Amendment retaliation and his procedural due process claims to survive. Id. at 3-8, 11-16. Specifically, the Court determined that Estep had plausibly alleged that the defendants violated his procedural due process rights in two different ways—by "(1) denying him the promotion to sergeant without a hearing, " and "(2) denying him a hearing before the city council to contest the reprimands." The defendants answered, R. 7, and subsequently filed the present motion, R. 10.


In their motion for partial judgment on the pleadings, the defendants advance several arguments in favor of dismissing Estep's procedural due process claims. Estep objects to thepropriety of the motion. He views it as an attempt to re-litigate issues that the Court already decided in its ruling on the defendants' motion to dismiss.

A. The Defendants' Motion is Proper

A motion for judgment on the pleadings is not an opportunity to re-litigate issues raised and decided in a motion to dismiss. Although the Federal Rules allow a defendant to assert the defense of failure to state a claim in a Rule 12(c) motion for judgment on the pleadings even if he previously raised it in a Rule 12(b)(6) motion to dismiss, see Fed. R. Civ. P. 12(h)(2)(B); Dorchester Investors v. Peak Trends Trust, No. 99-Civ.-4696, 2002 WL 272404, at *3 (S.D.N.Y. Feb. 26, 2002), courts should only grant such motions in limited circumstances. If the defendant's 12(c) motion simply reiterates the same arguments that he made in his 12(b)(6) motion, the court should deny it out of hand. If the defendant raises new arguments in his 12(c) motion that he could (and should) have raised in his 12(b)(6) motion, the court should usually deny the 12(c) motion, lest its first opinion be rendered merely advisory. Nevertheless, there are some unique situations where allowing the defendant a second opportunity to raise arguments in favor of dismissing a claim is appropriate. Where (1) the court's decision denying the motion to dismiss raises new or unexpected issues, (2) the defendant produces legal authority and/or evidence in response to the court's decision, (3) the plaintiff's claim must fail as a matter of law and cannot be saved with any amount of discovery, and (4) dismissing the claim will save the parties' and the court's resources, ruling on the defendant's 12(c) motion may be appropriate.

The defendants' present motion for judgment on the pleadings falls into that small category for which adjudication is not only permissible, but also desirable. First, the Court's prior decision denying the defendants' motion to dismiss raised some new issues, including thepossibility that Estep could have an implied property interest in the promotion to sergeant under Perry v. Sindermann, 408 U.S. 593 (1972). Second, the legal authority in the defendants' motion clearly establishes that the Court's analysis was incomplete and that Estep cannot have an implied property interest. The defendants have also produced the City of Somerset's Employee Handbook—a document central to Estep's claim and referenced in his complaint that Estep did not himself produce—which further demonstrates that Estep did not have a property interest in the promotion. Third, the defendants' motion establishes that the claim fails as a matter of law, even assuming all of the factual allegations in his complaint are true. See Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir. 2010). Therefore, no amount of discovery can save the claim. And, finally, dismissing the due process claim now will promote judicial economy and save the parties' resources. Allowing discovery to progress on the due process claim only to dismiss it at the summary judgment stage would be wasteful. Accordingly, the arguments that the defendants advance in their present motion are properly before the Court.

B. Procedural Due Process Claims

As the Court previously explained, Estep plausibly alleged that the defendants violated his procedural due process rights in two different ways: (1) by "denying him the promotion to sergeant without a hearing, " and (2) by "denying him a hearing before the city council to contest the reprimands he received." R. 6 at 11. In their present motion, the defendants successfully assail both of these claims.

(1) Denial of Promotion

The Court previously declined to dismiss Estep's claim that denying him the promotion to sergeant without a hearing violated due process because his complaint alleged a plausible property interest in the promotion—a necessary antecedent to a due process claim. R. 6 at 11-13. As the Court explained, "property" for due process purposes must "stem from an independent source such as state law." Id. (quoting Bd. of Regents v. Roth, 408 U.S. 564, 576-77 (1972)). State law can create property interests either explicitly, through contracts, ordinances, or official policies, or implicitly, through informal "rules and understandings" that are "promulgated and fostered by state officials." Perry v. Sindermann, 408 U.S. 593, 602 (1972). Estep's complaint alleged property interests of both types. He alleged that the "City of Somerset adopted certain regulations, policies, procedures, and ordinances setting forth eligibility requirements for promotions, " R. 1 ¶ 6, and that the defendants' violation of these ordinances and policies violated his right to procedural due process, id. ¶ 55. Estep also plausibly alleged a de facto entitlement to the promotion under Perry v. Sindermann. He alleged that he had received the second highest score in the application process, R. 1 ¶ 19, that he was "due to be promoted, " id. ¶ 22, and that Major Nelson had attempted to promote him but was rebuffed by Mayor Girdler, id. ¶ 25. From this, the Court could reasonably infer that the department had "fostered an understanding that the two officers who scored the highest on the exam were entitled to receive the promotion." R. 6 at 12.

As the defendants demonstrate in their present motion, Estep's claim of a property interest in the promotion—either implicit or explicit—must fail. First, the defendants have shown that neither the city's official ordinances nor its employment policies entitled Estep to thepromotion. The defendants have attached to their motion the City of Somerset's Employee Handbook, R. 10 Attach. 2-6, and the city ordinance adopting the handbook as the city's official "personnel policies, rules, and regulations." R. 10, Attach. 7. The handbook makes plain that the Mayor has complete and sole discretion to make promotion decisions. R. 10, Attach. 2 at 2 ("[T]he Mayor has the sole authority to... make promotions of all employees... [and] shall have the final approval of any and all raises and/or promotions in regards to the employees of the City."). Estep "can have no legitimate claim of entitlement to a discretionary decision." Richardson v. Twp. of Brady, 218 F.3d 508, 517 (6th Cir. 2000); see Golden v. Town of Collierville, 167 F. App'x 474, 477-78 (6th Cir. 2006) (plaintiff firefighter had no property interest in promotion where fire chief had unrestrained discretion to make or rescind promotions).

Estep does not contest the substance of the Employee Handbook, he merely contests the propriety of the Court relying on it at this stage of the litigation. His objections lack merit. First, because the City of Somerset has incorporated the handbook into a city ordinance, R. 10, Attach. 7, it is part of the law governing the city's employment policies. Courts can always consider the law when evaluating a motion for judgment on the pleadings. But even if the handbook is only extrinsic evidence,...

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