Fioretti v. City of Holly Springs, Civil Action No. 1:96cv17-D-D (N.D. Miss. 4/__/2001), Civil Action No. 1:96cv17-D-D.

• Decision Date: 01 April 2001
• Docket Number: Civil Action No. 1:96cv17-D-D.
• Parties: EDDIE FIORETTI and LENWOOD SMITH PLAINTIFFS v. CITY OF HOLLY SPRINGS, MISSISSIPPI and BILLY HASTY DEFENDANTS.
• Court: U.S. District Court — Northern District of Mississippi

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EDDIE FIORETTI and LENWOOD SMITH PLAINTIFFS v. CITY OF HOLLY SPRINGS, MISSISSIPPI and BILLY HASTY DEFENDANTS.

Civil Action No. 1:96cv17-D-D.

United States District Court, N.D. Mississippi, Eastern Division.

April __, 2001.

MEMORANDUM OPINION

Presently before the court is the motion of the defendants Holly Springs, Mississippi and Billy Hasty for the entry of summary judgment on their behalf. Finding that the motion is partially well taken, the court shall grant it in part and deny it in part.

Factual background¹

In 1993, authorities arrested Holly Springs Police Chief Anthony Clark Marion for various crimes committed within the scope of his duties as Chief of Police. After three separate trials before the undersigned, Marion was ultimately convicted. United States v. Marion, et al., Criminal Cause No.3:94cr036-D-D (N.D. Miss. Mar. 28, 1995) (Davidson, J.) (Judgment of Conviction). As a result of his arrest and subsequent prosecution, the City of Holly Springs terminated Marion's employment and began a search for a new chief of police. The plaintiff Eddie Fioretti, a longtime police officer of the city, served as acting chief of police while the city interviewed for Chief Marion's replacement. Marion is an African-American, and Fioretti is Caucasian. While Fioretti ran the department during the interim between Marion's departure and the eventual hiring of defendant Billy Hasty as the new Chief of Police, two of the city's aldermen spoke with Fioretti about the decision to choose a new chief:

Before the Board voted on a new Police Chief, I was told by Garrie Colhoun, Alderman, that he wanted Billy Hasty as the next Police Chief. Nancy Hutchens, Alderman, told me she was leaning towards Henry I. Chapman as the next Police Chief. Both of them told me that they did not want another black as Police Chief.

Exhibit "A" to Plaintiffs' Response, Affidavit of Eddie Fioretti, ¶ 4. The Board of Alderman eventually hired Billy Hasty, a Caucasian, as the new Chief of Police. However, they also created a new position in the department — Assistant Chief of Police. The Board hired plaintiff Lenwood Smith, an African-American, to fill this post.² The working relationships between Chief Hasty, Fioretti and Smith quickly deteriorated.

It was not long before I realized there were going to be problems. When measuring out a possible office for Assistant Chief Smith, Chief Hasty told me not to do anything for that black ass nigger he's not going to be here that long. Afterwards, Chief Hasty frequently referred to Assistant Chief Smith as a nigger.

. . .

Chief Hasty told me to stop babying them Goddamned nigger police officers. Several times he told me not to do anything for Assistant Chief Smith because he was going to get rid of him.

Exhibit "A" to Plaintiffs' Response, Affidavit of Eddie Fioretti, ¶¶ 7, 11 (text as in original). Other race-based frictions also arose between Chief Hasty and Fioretti. For example:

Chief Hasty also told Assistant Chief Smith and myself that he did not want blacks and whites fucking. When I told Chief Hasty it was not our business he became infuriated with me. From that point on, Chief Hasty's attitude towards me changed for the worse as he became hostile towards me.

Exhibit "A" to Plaintiffs' Response, Affidavit of Eddie Fioretti, ¶ 8 (text as in original). Chief Hasty later made false accusations against Fioretti before the Board of Aldermen. The conflict between Hasty and Fioretti eventually came to a head after a conversation Fioretti had with Smith:

Lenwood told me at McDonald's that morning that — to be careful, and that there had been a special board meeting called. And I believe that it was supposed to have happened on a Monday, and that board meeting was about me, and that Chief Hasty had gone to the Mayor and the board and had a special meeting, and was told things about me and all, and it was going to — looked like they were going to fire me.

Exhibit "B" to Plaintiffs' Response, Deposition of Eddie Fioretti, p.29. Soon after, Fioretti resigned his position with the Holly Springs Police Department. On September 7, 1994, the Board voted to terminate Smith's employment as Assistant Chief of Police. This cause followed.

The plaintiffs filed their complaint with this court on January 19, 1996, alleging various causes of action on behalf of both plaintiffs. On January 28, 1997, the defendants filed with this court a motion for summary judgment on the plaintiffs' claims. As discussed below, the plaintiffs confess many of their claims, and this matter is primarily before the court at this juncture on the claim of the plaintiff Fioretti that he was constructively terminated from his employment in violation of his First Amendment right of freedom of association, and upon plaintiff Smith's claim that he was terminated from his employment in violation of his Fourteenth Amendment right to equal protection under the law.

Discussion

Summary Judgment Standard

Summary judgment is appropriate "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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment carries the burden of demonstrating that there is an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once a properly supported motion for summary judgment is presented, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); Brothers v. Klevenhagen, 28 F.3d 452, 455 (5th Cir. 1994). "Where the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986); Federal Sav. & Loan Ins. v. Krajl, 968 F.2d 500, 503 (5th Cir. 1992). The facts are reviewed drawing all reasonable inferences in favor of the party opposing the motion. Matagorda County v. Russel Law, 19 F.3d 215, 217 (5th Cir. 1994).

Concession of claims

In their response to the defendants' motion for summary judgment, the plaintiffs confess that the entry of summary judgment is appropriate as to plaintiffs' claims for unreasonable search, due process violations and defamation arising under state law. In light of the plaintiffs' confession of these claims, the motion of the defendants shall be granted as to those claims. Therefore, all that remains for this court to address is the claim of plaintiff Eddie Fioretti that he was constructively discharged from the Holly Springs Police Department in violation of his First Amendment right of freedom of association, and the claim of plaintiff Lenwood Smith that he was terminated from his position with the Holly Springs Police Department in violation of his Fourteenth Amendment right to equal protection under the law.

First Amendment claim by plaintiff Eddie Fioretti

This court has had occasion recently to address the nature of a citizen's associational rights:

[T]he First Amendment does not contain a "generalized right of `social association.'" City of Dallas v. Stranglin, 490 U.S. 19, 25, 109 S.Ct. 1591, 1595, 104 L.Ed.2d 18 (1989); Wallace v. Texas Tech. Univ., 80 F.3d 1042, 1051 (5th Cir. 1996). Rather, the United States Supreme Court has determined that the First Amendment encompasses two categories of protection in this regard: 1) "intimate association"; and 2) "expressive association." City of Dallas, 490 U.S. at 23-25, 109 S.Ct. at 1594-95; Board of Directors of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 544, 107 S.Ct. 1940, 1945, 95 L.Ed.2d 474 (1987); Roberts v. United States Jaycees, 468 U.S. 609, 617-18, 104 S.Ct. 3244, 3249-50, 82 L.Ed.2d 462 (1984). The right of "expressive association" protects the rights of individuals to associate "for the purpose of engaging in those activities protected by the First Amendment — speech, assembly, petition for the redress of grievances, and the exercise of religion." City of Dallas, 490 U.S. at 24, 104 L.Ed.2d at 25 (quoting Roberts, 468 U.S. at 617-18). There is no evidence before the court to indicate that this type of associational protection is that which the plaintiff claims has been violated by the defendant, and the plaintiff has not even asserted such.

The right of "intimate association," also referred to by some courts as the right of "private association," is an entirely different animal. Its purpose is to protect against unjustified government interference with an individual's right to enter into and maintain certain intimate human relationships, and is protected as an element of personal liberty. City of Dallas, 490 U.S. at 24, 104 L.Ed.2d at 25 (quoting Roberts, 468 U.S. at 617-18); Wallace, 80 F.3d at 1051; Louisiana Deb. and Lit. Ass'n v. City of New Orleans, 42 F.3d 1483, 1493 (5th Cir. 1995).

This associational right most closely fits the contours of the plaintiff's claim in this cause. The relationships to which courts have extended this protection include that of marriage, the bearing of children, child rearing and education, and the cohabitation with familial relatives. Wallace, 80 F.3d at 1051 (citing Rotary Club, 481 U.S. at 545, 107 S.Ct. at 1945-46). A bright line determination of familial relationship does not establish the right, however, and other relationships may suffice. Particularly, relationships can give rise to a protected right if they are of the kind:

that presuppose "deep attachments and commitments to the necessary few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also...