German v. Killeen, Civ. No. 78-70217.

• Decision Date: 25 August 1980
• Docket Number: Civ. No. 78-70217.
• Citation: 495 F. Supp. 822
• Parties: Joseph L. GERMAN, Plaintiff, v. James R. KILLEEN, Wayne County Clerk, Joan M. Petitpren, Chairman, Wayne County Civil Service Commission, Henry R. Kozak, Vice-Chairman, Wayne County Civil Service Commission, Henry Majors, Wayne County Civil Service Commission, Richard G. Behler, Personnel Director and Secretary to the Commission, Helen Morgan, Assistant Personnel Director and Secretary to the Commission, Orville Tungate, Chief Deputy County Clerk, Defendants.
• Court: U.S. District Court — Western District of Michigan

495 F. Supp. 822

Joseph L. GERMAN, Plaintiff, v. James R. KILLEEN, Wayne County Clerk, Joan M. Petitpren, Chairman, Wayne County Civil Service Commission, Henry R. Kozak, Vice-Chairman, Wayne County Civil Service Commission, Henry Majors, Wayne County Civil Service Commission, Richard G. Behler, Personnel Director and Secretary to the Commission, Helen Morgan, Assistant Personnel Director and Secretary to the Commission, Orville Tungate, Chief Deputy County Clerk, Defendants.

Civ. No. 78-70217.

United States District Court, E. D. Michigan, S. D.

August 25, 1980.

COPYRIGHT MATERIAL OMITTED

Ruth B. Acevedo, Detroit, Mich., for plaintiff.

William B. McIntyre, Jr., Asst. Corp. Counsel, Detroit, Mich., for defendants.

OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS IN PART AND DENYING DEFENDANTS' MOTION TO DISMISS IN PART

COHN, District Judge.

I.

Before the Court are defendants' (with the exception of defendant Killeen) motions to dismiss plaintiff's Second Amended Complaint on the grounds that plaintiff has failed to state a claim on which relief can be granted. Fed.R.Civ.P. 12(b)(6).¹

Defendants claim plaintiff's allegations are insufficient to state a claim under 42 U.S.C. §§ 1981, 1983, 1985(3) and 1986, and they are immune from suit.

Jurisdiction is based on 28 U.S.C. § 1331 (original jurisdiction in matters involving a federal question), and 28 U.S.C. § 1343 (original jurisdiction for civil rights claims).

For the reasons stated, defendants' motions are granted in part.

II.

Plaintiff, a deputy court clerk for Wayne County, Michigan, was the subject of a 1975 grand jury investigation regarding alteration of court records. At the suggestion of defendant Killeen, plaintiff's superior and the appointing authority for plaintiff's position of deputy court clerk, plaintiff, in June 1975, went on a leave of absence pending the investigation and received vacation pay for the period rather than regular salary. After six weeks, plaintiff resumed his regular employment.

As a result of the grand jury investigation, plaintiff was charged on July 5, 1977 in a criminal complaint in the Recorder's Court for the City of Detroit with forgery and obstruction of justice. The charges alleged the false time-stamping of court papers which materially affected the course of a lawsuit.

Defendant Killeen immediately thereafter served plaintiff with an order of suspension for the period July 5, 1977 to October 4, 1977 without pay or benefits. Plaintiff appealed the suspension to the Wayne County Civil Service Commission (the Commission) which upheld the suspension. Plaintiff then filed a motion for writ of superintending control in the Wayne County Circuit Court which remanded the matter to the Commission. After a hearing, the Commission again affirmed the suspension. A grievance was filed by plaintiff's union representative but was later withdrawn.

A second order of suspension was issued on September 12, 1977 by defendant Killeen for the period October 5, 1977 to January 2, 1978. Plaintiff appealed this suspension by application for a writ of mandamus to the Wayne County Circuit Court, which denied the writ on the ground defendant Killeen had continuing authority to suspend so long as the subject of the suspension was an employee charged with a felony or misdemeanor involving moral turpitude. The Michigan Court of Appeals affirmed the denial, German v. Killeen, No. 77-4266 (Mich.App. July 20, 1978), and the Michigan Supreme Court denied leave to appeal. German v. Wayne County Clerk, 404 Mich. 811 (1978).

A third order of suspension was issued on December 27, 1977 by defendant Tungate, the Chief Deputy Court Clerk, for the period January 3, 1978 to April 2, 1978. No appeal was taken from this suspension.

A fourth order of suspension was issued on April 3, 1978 by defendant Tungate for the period April 3, 1978 to July 3, 1978. This suspension was cut short, however, when, on May 17, 1978, plaintiff was found not guilty in the Recorder's Court. Plaintiff was subsequently reinstated. The suspensions were thereafter withdrawn and compensation and benefits due plaintiff for the time he was under suspension were paid or credited.²

III.

As a result of the suspensions plaintiff filed suit³ against defendants Killeen and Tungate, his superiors; Joan M. Petitpren, Henry R. Kozak and Henry Majors, members of the Commission; Richard G. Behler, secretary and personnel director of the Commission; and Helen R. Morgan, secretary and assistant personnel director of the Commission. Plaintiff, in his Second Amended Complaint, alleges:

1) Defendants violated 42 U.S.C. § 1981⁴ by depriving him of contractual rights arising from his employment, of the full and equal benefits of procedural rights stemming from his civil service status and for subjecting him to pain, penalties and exactions not provided for by the civil service rules and regulations and not imposed on white employees;

2) Defendants violated 42 U.S.C. § 1983⁵ by depriving him of rights, privileges and immunities secured by the 4th, 5th and 14th amendments to the Constitution of the United States;

3) Defendants Morgan and Tungate violated 42 U.S.C. § 1985(3)⁶ by depriving him of privileges and immunities under the Constitution and of equal protection of the law; and

4) Defendants Morgan, Behler, Petitpren, Majors and Kozak violated 42 U.S.C. § 1986⁷ by conspiring not to prevent the alleged wrongful conduct toward him despite their power to do so.

These allegations are based on the claim that defendants' actions were outside their authority and contravened the rules and regulations of the Commission. Specifically included in the allegations are the wrongful suspension of plaintiff; the refusal to reimburse plaintiff for back salary and benefits; the failure of the Commission to promulgate, review and revise the civil service rules and regulations; and the libel and/or slander of plaintiff in connection with the criminal charges that were pending against him. Alternatively, plaintiff claims that even if these actions were within defendants' authority, the rules and regulations of the Commission are violative of his rights, privileges and immunities under the constitutions and statutes of the United States and of the State of Michigan.

Defendants, in their motions, say:

1) Plaintiff's allegations are insufficient to establish a claim under 42 U.S.C. §§ 1981, 1983, 1985(3) and 1986;

2) Defendants are each clothed with various degrees of immunity against the wrongful acts complained of 3) Some of the defendants simply had no power to perform the acts plaintiff complains of while other defendants performed those acts totally within the parameter of their official offices; and

4) Any claim on the suspension of September 12, 1977 is barred by res judicata and/or collateral estoppel, its legality having already been litigated before the Wayne County Circuit Court, the Michigan Court of Appeals and the Supreme Court of Michigan.

IV.

A.

A motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests the sufficiency of the allegations of the complaint. Elliot Co., Inc. v. Caribbean Utilities Co., Ltd., 513 F.2d 1176 (6th Cir. 1975). Thus the Court must determine whether, in a light most favorable to plaintiff assuming the allegations true, the complaint, liberally construed, states a valid claim for relief. 5 Wright & Miller, Federal Practice and Procedure 601 (1969).

"In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."

Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).

The complaint must set forth enough information to outline the elements of a claim or to permit inferences to be drawn that these elements exist. Fed.R. Civ.P. 8; Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). Conclusory allegations, however, should be avoided, especially when no facts are alleged to support the conclusions or when the allegations are contradicted by the facts themselves. Vermilion Foam Products Co. v. General Electric Co., 386 F.Supp. 255 (E.D.Mich.1974).

B.

Plaintiff initially charges defendants with violating 42 U.S.C. § 1981 claiming a deprivation of his contractual rights stemming from his employment, of the full and equal benefit of procedural rights stemming from his civil service status and for subjecting him to punishment, pain, penalties and exactions not provided for by civil service rules and regulations and not imposed on white employees.

Section 1981, originally enacted as part of the Civil Rights Act of 1866,⁸ was intended to uproot the institution of slavery and to eradicate its badges and incidents.⁹ Winston v. Lear-Siegler, Inc., 558 F.2d 1266 (6th Cir. 1977). It protects against discrimination based on race or alienage by providing all persons with the same right to make and enforce contracts as enjoyed by white citizens. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975).

To invoke the protection of § 1981, plaintiff must establish that defendants placed more stringent requirements on him because of his race; or that he was unable to make or enforce a contract that a white person could make or enforce; or that he was suspended because of dissimilar treatment caused in part by his race. Long v. Ford Motor Co., 496 F.2d 500 (6th Cir. 1974). Plaintiff must show that ". . . his employment terms vary from those which his employer accords to similarly situated white workers." Id. at 505. These allegations should be supported by reference to specific acts, practices or policies which resulted in the discrimination complained of.¹⁰United Black Firefighters of Norfolk v. Hirst, 604 F.2d 844 (4th Cir. 1979).

Plaintiff, in his Second Amended...