Linhart v. Glatfelter

Decision Date22 August 1985
Docket NumberNos. 84-1637,84-2817,s. 84-1637
Citation771 F.2d 1004
PartiesWayne F. LINHART, Plaintiff-Appellant, Cross-Appellee, v. Edward GLATFELTER, Individually and as Village Manager of the Village of Clarendon Hills, and the Village of Clarendon, Hills, a Municipal Corporation, Defendants- Appellees, Cross-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

Patrick J. Williams, Connolly & Ekl, Hinsdale, Ill., for plaintiff-appellant, cross-appellee.

Heidi H. Katz, Fawell, James & Brooks, Naperville, Ill., for defendants-appellees, cross-appellants.

Before CUDAHY and COFFEY, Circuit Judges, and PELL, Senior Circuit Judge.

CUDAHY, Circuit Judge.

The Village of Clarendon Hills reprimanded acting police chief Wayne Linhart for conducting political activity in his office, and Linhart responded with a Sec. 1983 action claiming deprivation of property without due process under the fourteenth amendment and retaliation for the exercise of first amendment rights. The district court, 584 F.Supp. 1369, granted the defendants summary judgment but denied them fees under Sec. 1988. Linhart appeals from the award of summary judgment and the defendants appeal from the denial of fees.

I.

On November 17, 1982, Wayne Linhart, then acting chief of police of the Village of Clarendon Hills, was given a written reprimand charging him with disloyalty and accusing him of undermining principles upon which the Village government rested. It also charged him with specific violations of the Village Police Department Rules and Regulations, including insubordination, solicitation of favorable acts and political utilization of his official position. The reprimand was signed by the Village Manager, Edward Glatfelter. The events leading up to the letter make up a tale of minor intrigue.

Linhart apparently had aspirations of becoming permanent police chief, and had interviewed with the Police Safety Committee for the job. The Committee, however, nominated Arthur Blackwell to the Village President and Board of Trustees for the position. But while the Safety Committee was interviewing candidates, the Village President, William Muller, had gotten together his own advisory group of village residents for the purpose of finding a suitable candidate. Muller had spoken to plaintiff Linhart about the position before the search began, and in September of 1982 Muller and his group again interviewed Linhart. On October 18, 1982 the Village Board, apparently in the dark about Muller's negotiations with Linhart, unanimously recommended Arthur Blackwell for the position to President Muller.

On Saturday, October 30, Linhart--at the instigation of a friend active in local politics--called Blackwell and asked him to meet him at the police station. When Blackwell arrived the two went into the police chief's office, and Linhart asked Blackwell whether he could handle the job of village manager. Blackwell apparently replied that he could handle any job that he applied for, but that he had not applied for that position. After some talk about inconsequential matters, Blackwell left.

It is not necessary to speculate about the point of that meeting, and about whether Linhart, with the blessing of Muller's group, intended to try to draw Blackwell out of the competition for acting chief of police. 1 For events took an unexpected turn, and it is that turn of events that gives rise to the present litigation. Glatfelter, the Village Manager, learned from Blackwell of the various efforts to interest him in Glatfelter's job, and in particular of the interview in the police chief's office. When confronted with the story, Linhart confirmed its accuracy but refused to tell who had instigated the interview.

On November 17, Glatfelter issued the letter of reprimand. He had met with the Village Board in executive session to discuss the matter, and the Trustees had, without going into specifics, authorized him to reprimand Linhart. The letter that Glatfelter drew up is set out in full in the lower margin. 2 It described the objectionable conduct, and listed five rules that the conduct violated. A subsequent letter modified the reprimand by deleting reference to one of the rules; this was done after discussion of the alleged violations with Linhart.

II.

The Village Board soon got a letter from Linhart's lawyer. Unless the reprimand was removed from Linhart's file, and a formal apology filed, the letter said, Linhart was prepared to file suit under 42 U.S.C. Sec. 1983. The letter contained the following sentence:

As I am sure you are aware, pursuant to Section 1983, if the plaintiff prevails on any count he is entitled to the recovery of all attorney's fees and costs from the defendant irrespective of the damage award.

The Board made two offers in response. It offered first to remove the reprimand letter from Linhart's personnel file upon the naming of a permanent police chief. When Linhart refused that offer, the Board offered to revise the reprimand, deleting all references to specific rules and regulations violated, and to allow Linhart to write a reply to the letter which would be placed in the file. 3

Linhart refused this second offer as well, in a letter which intimated that no settlement would be possible until Linhart received--as a kind of backpay--an amount equal to the difference between the sergeant's pay he had received as acting chief and the pay a permanent police chief would have received for the same period. The difference amounted to just under $4000. The Board denied the pay demand, and Linhart filed suit. While suit was pending a new Village President was elected to replace Muller; soon afterwards Arthur Blackwell was appointed chief of police, and Linhart took up his duties once more as a sergeant.

The district court dismissed all of Linhart's claims except two: the claim that the Village had deprived him of property without due process in violation of the fourteenth amendment, and the claim that the reprimand was issued in retribution for the exercise of his right to speak freely. The district court then, after discovery, granted the defendant summary judgment on those two remaining counts. Although the opinion in which the district court granted summary judgment was a long and stinging rebuke to plaintiff for having brought the suit in the first place, the judge later denied defendant's request for attorneys' fees under 42 U.S.C. Sec. 1988. He admitted that the case for fees was a close one but found that it was not quite as bad as some recent cases in which fees had been granted to the defendant. He concluded:

Thus, although he lost his case and got no money, Linhart may take what satisfaction he can from the fact that he has succeeded in using the civil rights laws of this country to make the taxpayers he purports to serve lay out the equivalent of almost a full year of his salary in order to reprimand him.

Linhart appeals from summary judgment; defendants appeal from the denial of fees.

III.

To overturn summary judgment, it is only necessary for plaintiff to show that there is in dispute a genuine issue of material fact. He must, however, allude to specific facts which raise a genuine issue for trial; "a bare contention that an issue of fact exists is insufficient to raise a factual issue." Posey v. Skyline Corp., 702 F.2d 102, 104-05 (7th Cir.1983).

Section 1983 creates a federal action against a state or municipality for deprivation of property or liberty without due process of law. Linhart did not succeed in convincing the district court that he had been deprived of property, or any other significant interest, or that the defendants acted without affording him due process; and we are inclined to agree with the district court that he has not even succeeded in raising an issue of material fact in these respects. Assuming, for the sake of argument, that Linhart was entitled to certain procedures--including a hearing--before being disciplined, that is not enough by itself to support a section 1983 action. The plaintiff must have been deprived of some legally cognizable interest. It is established, beyond question, that had Glatfelter published the reprimand in a local paper, and had the reprimand been false in every detail, there would still not be enough to support a section 1983 action, unless by publishing the false letter the Village deprived Linhart of a protected liberty or property interest. Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976); Bone v. City of Lafayette, 763 F.2d 295, 297 (1985); Lawson v. Sheriff of Tippecanoe County, 725 F.2d 1136, 1138 (7th Cir.1984). No such interest can be found in this case.

Linhart's job as a sergeant is a civil service job, and consequently he may have a property interest in that job. Moreover, he certainly has a liberty interest in his profession; to exclude him from the practice of it would deprive him of one aspect of his liberty. Lawson, supra, 725 F.2d at 1138. But he has not lost his job as a sergeant, and a fortiori he has not been excluded from a profession.

Moreover, he cannot claim a property interest in the job of police chief. As an acting police chief he held his position at the pleasure of Glatfelter and the Board of Trustees, and even if the letter of reprimand kept him from promotion to permanent chief--nothing in the evidence suggests that it did--he has no property interest in that position; the Village did not owe it to Linhart to make him chief of police. It would be inappropriate to speculate about what effect the reprimand might have if Linhart were to seek employment in his field elsewhere, since Linhart has not alleged that he sought and was denied such employment. 4

If Linhart has not been deprived of property or liberty, it is not necessary to determine whether he was given due process before being reprimanded: even if the reprimand was improper it will not support an action under Sec. 1983....

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