Fricker v. Town of Foster, C.A. 84-0156 S.

• Citation: 596 F. Supp. 1353
• Decision Date: 24 October 1984
• Docket Number: No. C.A. 84-0156 S.,C.A. 84-0156 S.
• Parties: Joseph W. FRICKER, Plaintiff, v. TOWN OF FOSTER, et als., Defendants.
• Court: U.S. District Court — District of Rhode Island

596 F. Supp. 1353

Joseph W. FRICKER, Plaintiff, v. TOWN OF FOSTER, et als., Defendants.

No. C.A. 84-0156 S.

United States District Court, D. Rhode Island.

October 24, 1984.

Hogan & Hogan, Edward T. Hogan, East Providence, R.I., for plaintiff.

William T. Gerstenblatt, Joel K. Gerstenblatt, and Gorham & Gorham, Bradford Gorham, Providence, R.I., and Breslin & Sweeney, David F. Sweeney, Warwick, R.I., for defendants.

MEMORANDUM AND ORDER

SELYA, District Judge.

This is a civil action brought in this court on March 30, 1984 by Joseph W. Fricker against the Town of Foster, a Rhode Island municipality, and the five members of the town's governing body, the Foster Town Council. These last-mentioned defendants (Franklin G. Arnold, Bruce D. Campbell, Joyce C. Hopkins, Paul W. Lunblad, and John F. Quinn) have been sued both individually and in their official capacity. The case is premised on this court's federal question jurisdiction. 28 U.S.C. § 1331. Pendent state-law claims are also asserted.

The matter is before the court on the defendants' motion to dismiss the plaintiff's amended complaint. Oral argument was heard on October 9, 1984, at which time the court took the matter under advisement.

I.

The pending motion implicates Fed.R. Civ.P. 12(b)(6). This court recently addressed the standard for review under that rule in Lopez v. Bulova Watch Co., 582 F.Supp. 755, 767 (D.R.I.1984):

When considering a motion brought pursuant to Fed.R.Civ.P. 12(b)(6), the court must view all facts and inferences in the light most favorable to the nonmoving party. Harper v. Cserr, 544 F.2d 1121, 1122 (1st Cir.1976); Seveney v. United States Government, Department of the Navy, 550 F.Supp. 653, 655 (D.R.I.1982). Only if it appears beyond doubt from the pleadings that the party opposing the motion can prove no set of facts which would support the claim for relief may the court grant the motion to dismiss. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Melo-Tone Vending v. United States, 666 F.2d 687, 688 (1st Cir.1981); Ballou v. General Electric Co., 393 F.2d 398, 399 (1st Cir.1968); Newport National Bank v. United States, 556 F.Supp. 94, 95 (D.R.I.1983).

The defendants, asserting want of subject matter jurisdiction, also rely on Fed.R. Civ.P. 12(b)(1). The standard is similar: the court will not dismiss a complaint for want of subject matter jurisdiction unless it clearly appears that no colorable hook exists upon which the court's jurisdiction may be hung.

While the motion discusses several potential grounds for dismissal, it necessarily brings before the court all substantial defects in the amended complaint which are readily apparent from the face of Fricker's pleadings. Black v. Brown University, 555 F.Supp. 880, 886 (D.R.I.1983); cf. Literature, Inc. v. Quinn, 482 F.2d 372, 374 (1st Cir.1973).

II.

The court presents the facts well pleaded in the amended complaint in the manner most hospitable to the plaintiff. It appears that Fricker, a former Providence police officer and railway security operative, was appointed in 1970 as police chief in Foster. He was reappointed in 1976, when the town adopted a home-rule charter (Charter). The amended complaint alleged neither the existence of a written employment contract nor a fixed term of office. Like so many local police executives, Fricker served at the pleasure of the town fathers. See text, post, at Part VII.

In late 1979, the Rhode Island State Labor Relations Board (Board), a state agency created pursuant to R.I.Gen.Laws § 28-7-4, certified the Fraternal Order of Police, Lodge No. 30 (F.O.P.) as the bargaining representative for the members of the Foster police department (including the chief). Fricker alleges that he was instrumental in securing this designation and that the defendants were hostile thereto.

Collective bargaining ensued. Plaintiff, though not describing his role (if any) in the bargaining, avers "upon information and belief" that on January 21, 1980, "because of his union support and activity ... and because of defendants' opposition to said support and activity," Amended Complaint at ¶ 16, he was dismissed by the defendants. A letter informing him of his removal was delivered on that date.

The F.O.P. grieved the town's unwillingness to talk over Fricker's discharge with the union. The Board, by decision dated October 24, 1980 (Decision), upheld the protest. The Board found that the town's recalcitrance was in violation of R.I.Gen. Laws § 28-7-13(7), in that the defendants had refused to discuss the matter. It is of significance to note the statutory underpinnings of the Decision: R.I.Gen.Laws § 28-7-13 makes it "an unfair labor practice for an employer: ... (7) (t)o refuse to discuss grievances with representatives of employees" when an exclusive bargaining agent has been properly designated.¹

The defendants assigned error. The state superior court, however, affirmed the Decision in September of 1981. The town's ensuing appeal was dismissed by the Rhode Island Supreme Court on procedural grounds. Town of Foster v. Rhode Island State Labor Relations Board, No. 81-593 (R.I. March 18, 1983) (order dismissing appeal). A later effort to obtain further appellate review by writ of certiorari was summarily rejected by the state supreme court. Town of Foster v. Rhode Island State Labor Relations Board, 461 A.2d 679 (R.I.1983) (order denying petition for writ of certiorari).

The grievance meeting was thereafter scheduled to take place on October 13, 1983 (subsequently postponed to November 3, 1983). In advance of the session, Fricker requested written specifications of the charges and reasons for his firing. The defendants declined to provide such particulars. The meeting which occurred on November 3 was, predictably, unproductive. In the aftermath thereof, Fricker filed a notice of claim and demand, see R.I.Gen. Laws § 45-15-5, and then sought recourse in this forum.

III.

The plaintiff's complaint limns six statements of claim in as many counts, viz.:

(1) Count I alleges transgressions of 42 U.S.C. § 1983, U.S. Const. amend. 1, and R.I. Const. art. I, § 20 arising out of the defendants' behavior in discharging the plaintiff and in withholding a hearing to which he was "entitled." Amended Complaint at ¶ 31. The complaint asserts that the defendants intended to "punish plaintiff for exercising his rights to Freedom of Speech and/or Freedom of Association." Id.

(2) Count II avers that the defendants deprived Fricker, by virtue of his dismissal, of various constitutionally protected property and liberty interests, all without due process, in violation of 42 U.S.C. § 1983 and U.S. Const. amend. 5, 14. Amended Complaint at ¶ 32.

(3) Count III rehashs the first two counts but adds a conclusory conspiracy allegation under 42 U.S.C. § 1983. Amended Complaint at ¶ 33.

(4) Count IV is a synergy of plaintiffs' due process claim (Count II) and state-law implied contract theory (Count VI). Plaintiff asserts that his due process rights were implied rights under his employment contract and/or that they were "conditions" of his employment. Amended Complaint at ¶ 34.

(5) Count V alleges that the defendants wrongfully discharged plaintiff and retaliated against him for the exercise of valid statutory and constitutional rights. Amended Complaint at ¶ 35.

(6) Count VI, which expresses a claim based on implied and express rights of contract, alleges that defendants breached their contractual duties by not affording plaintiff a hearing. Amended Complaint at ¶ 36.

IV.

The principal string to the defense bow is that Fricker's federal claims are time-barred. The parties agree that, in undertaking a limitations analysis under 42 U.S.C. § 1983, the federal courts must borrow from the state larder and must identify the "most appropriate" state statute of limitations, Johnson v. Railway Express Agency, 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975), that is, "the state law of limitations governing an analogous cause of action." Board of Regents v. Tomanio, 446 U.S. 478, 483-84, 100 S.Ct. 1790, 1795, 64 L.Ed.2d 440 (1980). The defendants contend that either R.I.Gen. Laws § 9-1-25 ("... Actions or claims in tort against ... any city or town ... shall be instituted within two (2) years of the accrual of any claim of tort," and not thereafter) or R.I.Gen.Laws § 9-1-14 ("Actions for injuries to the person shall be commenced and sued within three (3) years next after the cause of action shall accrue," and not thereafter) apply; and that, in either event, the plaintiff has been tardy in suing. Fricker argues that R.I.Gen.Laws § 9-1-13(a) (a ten-year statute of limitations for contract claims) is the most analogous Rhode Island enactment and should govern here.

All parties overlook, however, the trilogy of First Circuit cases speaking to civil rights cases in the context of the work-place. In the first of these, Burns v. Sullivan, 619 F.2d 99 (1st Cir.), cert. denied, 449 U.S. 893, 101 S.Ct. 256, 66 L.Ed.2d 121 (1980), the court of appeals held that neither the general tort nor contract statutes controlled a policeman's occupational discrimination claim, but that the most similar state limitations period was contained in Mass.Gen.Laws Ann. ch. 151B, § 5, a six-month fair employment practices law. Burns, 619 F.2d at 105-08. Next, a half-year period drawn from a source of the same genre (Mass.Gen.Laws Ann. ch. 31, § 42, which dealt with Massachusetts civil servants) was applied to a police officer's claim of political discrimination. Hussey v. Sullivan, 651 F.2d 74, 76 (1st Cir.1981) (per curiam). Most recently, the limitations period endorsed in Hussey was held to cover due process, equal protection and free speech claims by a Commonwealth employee arising in a public employment milieu. Holden v. Commission Against Discrimination, 671 F.2d 30, 33-34 (1st...