Jackson v. DEPT. OF PUBLIC SAF. FOR STATE OF LA., Civ. A. No. 83-3-A.

• Decision Date: 18 April 1983
• Docket Number: Civ. A. No. 83-3-A.
• Citation: 562 F. Supp. 324
• Parties: James JACKSON, Individually and as a Member of a Class of Similarly Situated Individuals v. The DEPARTMENT OF PUBLIC SAFETY FOR the STATE OF LOUISIANA, Donald Bollinger, as Secretary of the Department of Public Safety for the State of Louisiana, and G.W. Garrison, Deputy Secretary for the Department of Public Safety for the State of Louisiana.
• Court: U.S. District Court — Middle District of Louisiana

562 F. Supp. 324

James JACKSON, Individually and as a Member of a Class of Similarly Situated Individuals v. The DEPARTMENT OF PUBLIC SAFETY FOR the STATE OF LOUISIANA, Donald Bollinger, as Secretary of the Department of Public Safety for the State of Louisiana, and G.W. Garrison, Deputy Secretary for the Department of Public Safety for the State of Louisiana.

Civ. A. No. 83-3-A.

United States District Court, M.D. Louisiana.

April 18, 1983.

Dennis R. Whalen, Baton Rouge, La., for plaintiff.

Howard P. Elliott, Jr., Gen. Counsel, Dept. of Public Safety, State of La., Baton Rouge, La., for defendants.

JOHN V. PARKER, Chief Judge.

Plaintiff, James Jackson, attempts to bring this action on behalf of all commissioned Louisiana State Police Officers both past and presently employed by the Department of Public Safety from December 31, 1971 until the present and who, during the course and scope of their employment, were required to work in excess of 40 hours per week. The defendants are the Department of Public Safety for the State of Louisiana, employer of the class, Donald Bollinger, Secretary of the Department of Public Safety, and G.W. Garrison, Deputy Secretary of the Department of Public Safety. Plaintiff claims that defendants deprived him of property (earned compensation) without due process of law, acting under color of state law. The class has not been certified.

Jurisdiction is asserted under 42 U.S.C. §§ 1983, 1988 and 28 U.S.C. § 1343 (Plaintiff lists 1983, 1988, Article 3, Rules 23 & 65.

The complaint alleges that under state statutes and regulatory schemes, the members of the class who have worked in excess of 40 hours per week would either be paid overtime rates of one and one-half their hourly pay or they would be credited with what is referred to as compensatory time (comp time or K-time). Plaintiff contends that the payment for overtime is made when the members of the class are credited with comp time on the records of the Department of Safety; that credit is property. Another regulation limits the amount of comp time that can be carried over into the following year. Plaintiff claims that the officers are not allowed to take the time off, and then the compensation is removed from the records under the color of state law through the limitation on the number of hours that can be carried over from one year to another.

Plaintiff's amended complaint revised some of the language of the original and added support for the finding of a class action. Defendant's motion to dismiss lists five grounds: failure to state a claim, no federal question, failure to exhaust administrative remedies, pending state action ongoing, and a sort of Usery-Pullman abstention fashioned by an unusual interpretation of Usery.

Defendants cite no authority in support of their argument to abstain because an action is pending in state court. They simply assert that the same issues were presented to the state court. This court ordered defendants to produce documents supporting that claim; those documents were filed on April 12, 1983. Defendants also argue that this issue really is one of interpreting state law; thus Pullman abstention is proper; and further argue that plaintiff has not availed himself of the grievance procedure under the Civil Service Commission which would provide an adequate remedy.

The plaintiff replies that abstention is generally not favored in civil rights cases, that a pending state action does not preclude a federal court from asserting jurisdiction, that the state law at issue here is clear, making Pullman inapplicable, that plaintiff really means to claim that this case calls for a Burford abstention but that Burford is also inappropriate here because to seek relief via the state would be both lengthy and unsatisfactory—more complete relief may be had through § 1983.

Failure to state a claim: The test is whether plaintiff could prove any set of facts in support of his claim which would entitle him to relief. Jenkins v. McKeithen, 359 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1979). Plaintiff claims that payment for overtime is made when the plaintiffs are credited with comp time on the records of the Department of Public Safety; it is the refusal to permit officers to take the time off, and the removal of that compensation from the records by the defendants under the color of state law (La.Civil Service Rule 11.29(f) given statutory status by Article 10, La. Const.) which is the basis of the complaint and sufficient to support a claim if proven.

Exhaustion of Remedies: The plaintiff makes no claim that he attempted to present his grievance to the Department of Civil Service. The defendants assert that plaintiff's claims should go first through administrative channels. The Civil Service Commission, however, could not rule on the constitutionality of the statutes, although it could interpret the statutes at issue (La. Const. of 1974, Article 5, Section 1). (But the constitutionality could be addressed on appeal from the Civil Service ruling which is appealed directly to the Court of Appeal). And, exhaustion of administrative remedies is not a prerequisite to a civil rights suit under § 1983. Wells Fargo Armored Service Corp. v. Georgia Public Service Co., 547 F.2d 938 (5th Cir. 1977); Moreno v. Henckel, 431 F.2d 1299 (5th Cir.1970); Bossier City Medical Suite, Inc. v. City of Bossier City, 483 F.Supp. 633 (W.D.La.1980). Exhaustion of judicial remedies is likewise not a prerequisite. Hall v. Garson, 430 F.2d 430 (5th Cir.1970).

Abstention: Plaintiff filed suit in state court before bringing this action. Defendants filed a copy of the record of the proceedings in state court on April 12, 1983. Based on that record, the procedural history in state court is as follows:

1) Judgment of district court dismissing action for lack of SMJ on December 9, 1982.

2) New trial denied—December 13, 1982.

3) Motion granting devolutive appeal February 7, 1983, with a return date of April 6, 1983.

4) Record lodged with the Court of Appeal for the First Circuit March 7, 1983.

The petition filed in state court is virtually identical to that filed in federal court except that the state court petition is more detailed. Plaintiff asks for relief based on the Constitution of Louisiana, the Constitution of the United States (5th and 14th Amendments), and in Paragraph 9 he states that

this action is brought both under the Louisiana State Law, and under the laws of the United States, particularly Title 42, Section 1983 and 1988, it being a deprivation of civil rights to property, guaranteed by the Constitution of the United States, said deprivation occuring under the color of state law, particularly Civil Service Rule 11.29, and, therefore, pursuant to Title 42, Section 1988, the plaintiffs are entitled to have the defendants pay reasonable attorney fees for bringing the prosecution of this action

Both actions pray for damages for all earned and accumulated comp time divested by action of the defendants and for attorney's fees; the federal court action has an additional prayer for punitive damages from the individual defendants found liable.

Abstention from the exercise of federal jurisdiction is the exception, not the rule. Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). The United States Supreme Court recently reiterated its holding in Colorado River that a federal district court may decline to exercise its jurisdiction because of parallel state-court litigation only in exceptional circumstances; only the clearest of justifications will warrant dismissal. Moses H. Cone Memorial Hospital v. Mercury Construction Corp., ___ U.S. ___, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). Rejecting a hard and fast rule for dismissals of this type, the court described factors...