Hampton Co. Nat. Sur., LLC v. Tunica County, Miss.
Decision Date | 18 September 2008 |
Docket Number | No. 07-60859.,07-60859. |
Citation | 543 F.3d 221 |
Parties | The HAMPTON COMPANY NATIONAL SURETY, LLC, A Mississippi Limited Liability Company; James Dean, An Individual; James Hampton Gardner, An Individual, Plaintiffs-Appellants, v. TUNICA COUNTY, MISSISSIPPI; Calvin Hamp, Sr., Individually, Defendants-Appellees. |
Court | U.S. Court of Appeals — Fifth Circuit |
James David Harper (argued), Stroud & Harper, Southaven, MS, William Benjamin Ryan, Donati Law Firm, Memphis, TN, for Plaintiffs-Appellants.
John Samuel Hill (argued), Stephen Pierce Spencer, Mitchell, McNutt & Sams, Tupelo, MS, for Defendants-Appellees.
Appeal from the United States District Court for the Northern District of Mississippi.
Before KING, HIGGINBOTHAM and SOUTHWICK, Circuit Judges.
A surety company and two of its agents appeal from a summary judgment that dismissed their various Section 1983 claims. We affirm that part of the judgment that dismissed a Due Process claim against the sheriff who barred them from writing bail bonds in one county. Finding disputes of material fact, we reverse judgment on that same claim against the county and on the First Amendment and Equal Protection claims against both the sheriff and the county based on the same events. We remand.
The issues in this case arise from the decision by Tunica County, Mississippi Sheriff Calvin Hamp, Sr., to remove the three Plaintiffs from a roster of bail bond agents approved to write bonds in that county. The removal lasted from February 2005 until December 2006. Removed were Plaintiff James Hampton Gardner, who is a professional bond agent, and his bail bonding business Hampton Company National Surety, LLC, which also is a Plaintiff. Also removed was a third Plaintiff, James Dean, a licensed bail soliciting and bail enforcement agent employed by Gardner. Relevant to the claims, both Gardner and Dean are white males, while the Sheriff is an African-American. During the entire period, Gardner and Dean were in good standing with the Mississippi Department of Insurance which regulates their bail-bond licenses.
It is undisputed that Sheriff Hamp prohibited the Plaintiffs from writing bonds in Tunica County. Disputed are the Sheriff's reasons. The Plaintiffs allege that the Sheriff retaliated for Gardner and Dean's participation in exposing illegal conduct by the prior sheriff, and also for criticizing Hamp. Also alleged is that the decision was racially motivated.
The Defendants alleged that the Plaintiffs' removal was because three criminal defendants they bonded failed to appear at a scheduled arraignment. Two other bail bondsmen, both African-American, were taken off the approved list at the same time for similar reasons. The Defendants assert that Plaintiffs remained off the approved list only because they failed to ask the Circuit Clerk to inform Hamp that the default was cured.1 The other bail bondsmen who were removed from the list promptly informed the Circuit Clerk that their arrearages were remedied, and they were again placed on the approved list.
The Plaintiffs brought a Section 1983 suit against Sheriff Hamp in his individual capacity and against Tunica County. They alleged violations of their constitutional rights under the Due Process and the Equal Protection Clauses of the Fourteenth Amendment, and the First Amendment. The district court granted summary judgment in favor of the Defendants on all claims, holding that Defendant Hamp was entitled to qualified immunity and that the claims against Tunica County failed because the Plaintiffs did not establish that a custom or policy of the County deprived the Plaintiffs of a clearly established constitutional right. The Plaintiffs timely appealed.
We review the grant of summary judgment de novo, applying the same standard as the district court. Facts are viewed in the light most favorable to the nonmovant. Summary judgment is appropriate "when no issue of material fact exists and the moving party is entitled to judgment as a matter of law." Mowbray v. Cameron County, Tex., 274 F.3d 269, 278-79 (5th Cir.2001).
The Plaintiffs have brought their claims under a statute that provides a remedy against "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, ... subjects, or causes to be subjected, any citizen of the United States or other person ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws" of the United States. 42 U.S.C. § 1983. A "municipality," which in this jurisprudence includes other local governmental units such as a county, is a "person." Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
Though the statute is broadly written, individual government officials performing official and discretionary functions have a qualified immunity from personal liability. We will later discuss the two parts of a sequential test that determines whether the immunity applies.
A county's liability under Section 1983 arises when "official policy or governmental custom is responsible for a deprivation of rights protected by the Constitution...." Bennett v. City of Slidell, 728 F.2d 762, 766 (5th Cir.1984).
The district court determined that Sheriff Hamp was entitled to qualified immunity on the Due Process and Equal Protection claims. With regard to the First Amendment claim, the court held that the Plaintiffs could not demonstrate that the actions of Hamp were objectively unreasonable. As to Tunica County, the court also granted summary judgment because the court found no deprivation of a constitutional right.
With these standards, we review the district court's ruling. The Plaintiffs' claims against Sheriff Hamp and Tunica County are identical. Even so, on the Due Process claims, separate analyses regarding the Sheriff and the County are necessary. We do not need to make that separation for the Equal Protection and Free Speech analysis.
Procedural Due Process "imposes constraints on governmental decisions that deprive individuals of `liberty' or `property' interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment." Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). When a property interest is taken, "some form of hearing is required" before a final deprivation of the interest. Id. The Plaintiffs allege that Sheriff Hamp violated these rights by removing them from the approved roster without following the procedures required for suspending or revoking a state-issued bail bondsman license.
In determining whether qualified immunity applies to this official's actions, a two-part sequential test is applied. First we determine, viewing the summary judgment evidence in the light most favorable to the plaintiff, whether some evidence supporting the violation of a constitutional right exists. Saucier v. Katz, 533 U.S. 194, 199, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Whether there is evidence to support the conclusion that a constitutional right was violated is a legal question. Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991).
Only if there is some evidence to support the violation of a constitutional right do we analyze whether "the defendant's actions were objectively unreasonable in light of clearly established law at the time of the conduct in question." Freeman v. Gore, 483 F.3d 404, 410-11 (5th Cir.2007). Applying this standard, we decide "whether reasonably competent officers would have known that their actions violated law which was clearly established at the time of the disputed action." Collins v. Ainsworth, 382 F.3d 529, 537 (5th Cir.2004).
To overcome the first part of the qualified immunity defense, the Plaintiffs must demonstrate that a state-licensed fidelity and surety company and its agents who write bail bonds have a property right to issue those bonds in a particular county. This is the necessary right because that is the limit of what the Sheriff took, and from whom he took it. When there is no "property interest, there is nothing subject to Due Process protections and our inquiry ends." Cabrol v. Town of Youngsville, 106 F.3d 101, 105 (5th Cir.1997). Mississippi law controls on whether a property interest exists: Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).
The Plaintiffs argue that a property right arises from the state statutes that establish the licensing and regulatory rules for bail bonds in Mississippi. See Miss. Code Ann. §§ 83-39-1 et seq. Agents writing bail bonds in Mississippi must be licensed by the Mississippi Commissioner of Insurance under this statutory scheme — not by county sheriffs.
The argument is based on a valid premise, namely, that a state-issued license can create a property interest cognizable under the Due Process clause:
Once licenses are issued, ... their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses ... involves state actions that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment.
Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). In this case, no state-issued license has been taken. Any taking here was limited to a right to write bonds in one county. Our issue is whether the state license was qualified by the right of a sheriff to limit its use in a county because of acts or omissions in that county.2
Plaintiffs have cited us to no appellate authority to support their position that a...
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