Gutierrez v. Lynch, No. 86-3637

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: Before KENNEDY, JONES and RYAN; NATHANIEL R. JONES
• Citation: 826 F.2d 1534
• Parties: Anthony GUTIERREZ, Plaintiff-Appellant, v. John E. LYNCH, III, individually and as Chief of Police, Youngstown Police Department; George Vukovich, individually and as Mayor of Youngstown, Ohio; John Franken, individually and as Risk Manager; City of Youngstown, Ohio c/o Edward Sobnosky, Law Director of Youngstown, Defendants-Appellees.
• Docket Number: No. 86-3637
• Decision Date: 25 August 1987

Page 1534

826 F.2d 1534 Anthony GUTIERREZ, Plaintiff-Appellant,
v.
John E. LYNCH, III, individually and as Chief of Police,
Youngstown Police Department; George Vukovich, individually
and as Mayor of Youngstown, Ohio; John Franken,
individually and as Risk Manager; City of Youngstown, Ohio
c/o Edward Sobnosky, Law Director of Youngstown, Defendants-Appellees. No. 86-3637. United States Court of Appeals,
Sixth Circuit. Argued May 22, 1987.
Decided Aug. 25, 1987.

Page 1535

Frank J. McNally (argued), Thomas G. McNally, Rocky River, Ohio, for plaintiff-appellant.

Robert B. Stein (argued), Pittsburg, Pa., for Vukovich.

William J. Higgins, Youngstown, Ohio, for John Franken.

Timothy E. Franken, Youngstown, Ohio, for J. Franken.

Harold Stein, Cheryl L. Waite (argued), Youngstown, for Lynch, Vukovich Franken, & the City of Youngstown.

Before KENNEDY, JONES and RYAN, Circuit Judges.

NATHANIEL R. JONES, Circuit Judge.

Plaintiff Anthony Gutierrez appeals from the district court's order granting summary judgment in favor of defendants in this civil rights case. For the reasons set forth below, we affirm the district court's order.

I.

Gutierrez, a former lieutenant on the Youngstown police force, was terminated on December 6, 1982. The letter of dismissal sent to Gutierrez listed eight charges that constituted the grounds for his dismissal. He was charged with directing threatening and abusive language towards city councilmen and various city department heads, as well as issuing death threats against the Mayor of Youngstown, George Vukovich.

Following his termination, plaintiff sought review before the Youngstown Civil Service Commission. A hearing was set for December 16, 1982. Plaintiff requested a continuance and the hearing was rescheduled for February 3, 1983. Due to the fact that two of the three members of the Commission resigned prior to the adjourned hearing date, the hearing was again delayed until March 3, 1983, while new members were appointed. Shortly thereafter, the Commission announced its decision that plaintiff had been properly terminated for violating the rules of the Youngstown Police Department.

Plaintiff then appealed the Commission's decision to the Court of Common Pleas for Mahoning County, Ohio. On April 4, 1984, the court found "by a preponderance of reliable, probative and substantial evidence that the Youngstown Civil Service Commission decision, upholding the Police Department termination and dismissal of the Appellant, Anthony Gutierrez, was proper and in accordance with law." In a five page opinion, the court specifically addressed the dismissal procedure employed by the Youngstown Police Department and the Civil Service Commission, and concluded that the procedure required by law at the time of plaintiff's dismissal and the Commission's hearing had been followed properly.

Plaintiff next appealed to the Ohio Court of Appeals. On July 16, 1985, that court affirmed the judgment below and overruled all of plaintiff's assignments of error. One of the assignments of error specifically dealt with the alleged deprivations of "the most rudimentary requirements of due process of law." Plaintiff contended that he had not been given adequate and timely notice of the hearing, that the hearing had not been held in a timely fashion, and that the hearing was not held before an impartial board. The court rejected all of these contentions and found that the post-termination hearing had been constitutionally sound. The Ohio Supreme Court declined leave to appeal.

Plaintiff then sought relief in the federal courts. Plaintiff had previously filed suit in federal district court on October 12, 1982, alleging that his federal constitutional rights had been violated because he had been denied sick leave compensation and injured-on-duty status in violation of 42 U.S.C. Secs. 1981, 1983 and 1985 (1982). After

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his termination, plaintiff amended his original complaint and asserted a new Sec. 1983 claim alleging, inter alia, that the defendants herein, Mayor Vukovich, Chief of Police John Lynch, Risk Manager John Franken, and the City of Youngstown, had conspired to deprive him of his constitutional rights; that he had been denied due process because he had not been afforded proper pretermination and post-termination hearings; and that his right to privacy had been violated by a city ordinance that, inter alia, required employees on sick leave for more than 30 days to complete a form providing the City with medical information.

Defendants subsequently filed a motion for summary judgment. On February 6, 1986, the district court issued an order granting in part and denying in part defendants' motion. The court held that since plaintiff had fully litigated his termination claim in the state courts, the full faith and credit statute, 28 U.S.C. Sec. 1738 (1982), precluded the federal courts from addressing this claim. Plaintiff had argued to the court that the fact that he had not been given a hearing prior to his termination pursuant to the Supreme Court's mandate in Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), constituted a constitutional violation that had not been litigated in the state courts. Plaintiff went on to argue that since this issue had not been previously litigated, the full faith and credit statute was inapplicable. The court rejected this contention.

The court also held that the defendants' motion for summary judgment on plaintiff's conspiracy claim should be granted because plaintiff's complaint contained only vague and conclusory allegations. The district court declined to grant defendants' motion for summary judgment on the invasion of privacy claim because defendants had not specifically detailed how plaintiff's privacy rights were being safeguarded. However, the court allowed defendants to renew their motion within 30 days. Defendants did this, and along with their renewed motion, submitted affidavits detailing the manner in which plaintiff's rights were being safeguarded. Based on this new application, the court granted summary judgment in favor of defendants on this issue as well on June 5, 1986. Plaintiff now appeals.

II.

Plaintiff contends that the district court erred in entering summary judgment in favor of defendants. An appellate court applies the same test as used by the district court in reviewing a motion for summary judgment. Hand v. Central Transport, Inc., 779 F.2d 8, 10 (6th Cir.1985). Where the moving party has carried its burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record, construed favorably to the nonmoving party, do not raise a genuine issue of material fact for trial, entry of summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

A.

Plaintiff first contends that the district court's holding that his due process claim was barred by the full faith and credit statute is erroneous. Plaintiff argues that since he did not raise the pretermination hearing issue in state court, he should not be barred from now raising it in federal court. Plaintiff also argues that his post-termination claim should not be barred because the state courts were without jurisdiction to address that claim since the proper pretermination procedures had not been followed.

The foundation of the district court's holding on this issue is the full faith and credit statute, which provides in relevant part that:

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