Moore v. City of Paducah

• Decision Date: 09 January 1990
• Docket Number: No. 89-5018,89-5018
• Citation: 890 F.2d 831
• Parties: Paul MOORE, Plaintiff-Appellant, v. CITY OF PADUCAH; John Penrod, Mayor; Joe Viterisi, Commissioner; Robert Coleman, Commissioner; Joe Flynn, Commissioner, Defendants, Robert E. Green, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 831

890 F.2d 831

Paul MOORE, Plaintiff-Appellant, v. CITY OF PADUCAH; John Penrod, Mayor; Joe Viterisi,

Commissioner; Robert Coleman, Commissioner; Joe

Flynn, Commissioner, Defendants,

Robert E. Green, Defendant-Appellee.

No. 89-5018.

United States Court of Appeals, Sixth Circuit.

Argued Sept. 28, 1989.

Decided Nov. 29, 1989.

Rehearing Denied Jan. 9, 1990.

James W. Owens, argued, Paducah, Ky., for plaintiff-appellant.

Thomas J. Keuler, argued, W. David Denton, Denton & Keuler, Paducah, Ky., James W. Funk, Kimmell, Funk & Cummings, Vincennes, Ind., for defendants, defendant-appellee.

Before KRUPANSKY and WELLFORD, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

CELEBREZZE, Senior Circuit Judge.

The appellant, Paul Moore, brought this action pursuant to 42 U.S.C. Sec. 1983 against the defendant-appellee, Robert Green and the defendants, the City of Paducah, the Mayor and City Commissioners of Paducah, Kentucky, alleging that he was denied his due process right to a hearing prior to his job transfer. Moore now appeals the order of the United States District Court for the Western District of Kentucky directing a verdict in favor of the defendant, Robert Green. ¹ Upon review, we conclude that the district court correctly found that no reasonable jury could find that a conspiracy existed to violate Moore's constitutional rights. Accordingly, we affirm.

I.

Moore was hired by the City of Paducah in December, 1971. In September, 1972, he became department head for the Department of Building, Electrical, Construction and Code Enforcement. Thereafter, in 1980, Robert Green, a real estate developer, initiated plans to build an Executive Inn and Convention Center in Paducah. Green had previously been the developer of a similar Executive Inn in Owensboro, Kentucky.

Shortly after the beginning of construction of the Executive Inn in Paducah, Green went to Moore's office and demanded a variance on a building code related to earthquake safety. Moore informed Green that state law did not permit him to grant a variance on that particular code. Subsequently, Green requested from the Mayor that the state be given exclusive jurisdiction over the project. Since the inspection and supervision of construction in the previous Owensboro project rested solely with the state, Green had already established a good working relationship with the state, and felt that direct negotiations with the state would expedite the completion of his present project, the Executive Inn in Paducah. Eventually, the Mayor was able to accommodate Green's request, and the state assumed exclusive jurisdiction over the project on January 16, 1981. ² Thereafter, Moore was relieved of all inspection and supervision responsibilities over the project. ³

On May 6, 1981, for reasons the parties soundly dispute, the City of Paducah created by ordinance a new department which was to be known as the Department of Safety and Inspection. Moore was transferred to this department as Chief Inspector by the unanimous vote of the Mayor and Commissioners, retaining his same wages and other employment and pension benefits which he previously had as Building Inspector. Since the City considered the transfer to be lateral in nature, upon advice of City Counsel, Moore was not accorded a hearing prior to his transfer.

As a result of his transfer, and in addition to this federal action, Moore brought suit in Kentucky state court alleging that his transfer without a hearing was in violation of the Kentucky Civil Rights Act. The state court found that Moore's new position as Safety Inspector had no articulable responsibilities, and as such, the transfer amounted to a reduction in grade. Since a reduction in grade is prohibited by state law except for cause and after a hearing, the court reinstated Moore to his former position and awarded all loss of wages and other employment benefits. The state court proceedings are now finalized.

As a result of the state court judgment, the City of Paducah, the Mayor, and the City Commissioners were dismissed from this federal action, rendering Green the sole defendant. In his suit against Green, Moore sought compensatory damages for damage to his reputation and for emotional distress, ⁴ punitive damages, and attorney's fees. However, at the close of Moore's case-in-chief, the district court granted Green's motion for a directed verdict. This timely appeal ensued.

II.

By enacting the Civil Rights Act, Congress provided a remedy to individuals deprived of constitutional rights by an official's abuse of his position. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) (overruled in part on other grounds, Monell v. Department of Social Services of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). Title 42 U.S.C. Sec. 1983 provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit or equity, or other proper proceeding for redress....

42 U.S.C. Sec. 1983. The critical language of the statute raises three legal issues relevant to the case at bar: (1) who is a "person" subject to suit; (2) what is the meaning of "under color of state law"; and (3) what rights does Sec. 1983 protect.

It is well settled that municipalities and their local government units are "persons" under the statute, and are, therefore, subject to suit. Monell v. Department of Social Services of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (overruling Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961)). The Monell Court reasoned that municipalities were not free to violate constitutional rights and that the legislative history did not justify excluding municipalities from liability. Id. 436 U.S. at 700-01, 98 S.Ct. at 2040-41. Thus, the City of Paducah is a "person" under this statute. ⁵

Section 1983 does not reach purely private conduct, but is aimed at action taken under color of state law. See Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) (overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)). The traditional definition of this language requires that the defendant have "exercised power 'possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.' " West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 2255, 101 L.Ed.2d 40 (1988) (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 reh'g denied, 314 U.S. 707, 62 S.Ct. 51, 86 L.Ed. 565 (1941)). However, the modern approach treats "under color of state law" and "state action" as coterminous. "If the challenged conduct of [Green] constitutes state action as delimited by ... prior decisions, then that conduct [is] also action under color of state law and will support a suit under Sec. 1983." Lugar v. Edmondson Oil Co., 457 U.S. 922, 935, 102 S.Ct. 2744, 2752, 73 L.Ed.2d 482 (1983); see also West v. Atkins, 108 S.Ct. at 2255. ⁶

In Lugar, the Court held that "the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible." Id. 457 U.S. at 937, 102 S.Ct. at 2753. Furthermore, "the party charged with a deprivation must be a person who may fairly be said to be a state actor." Id. Consequently, the Mayor and City Commissioners of Paducah fall within this definition.

Finally, "[t]o state a claim under Sec. 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States...." West v. Atkins, 108 S.Ct. at 2255. In the instant case, the plaintiff, Moore, alleged a deprivation of his constitutionally protected property right of employment. Specifically, Moore alleged that Green and the city officials conspired, under color of law, to deprive him of his due process right to a hearing before the transfer. ⁷ Since the Due Process Clause requires that an individual be given an opportunity to be heard before he is deprived of a property interest, Cleveland Board of Education v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985), Moore states a cognizable Sec. 1983 claim. ⁸

However, the instant case is against Green, who is not a city official, but a private individual. Therefore, the narrow issue for review is whether action taken by Green is action taken "under color of state law," thereby subjecting him to liability under Sec. 1983.

III.

In United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966), the Supreme Court addressed the "color of law" language under 18 U.S.C. Sec. 242, the criminal counterpart of 42 U.S.C. Sec. 1983. ⁹ The Price Court articulated that "[t]o act 'under color' of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents." Id. at 794, 86 S.Ct. at 1157. Thus, a private party may conspire with the state and be liable under Sec. 1983. See, e.g., Adickes v. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (store clerk and police officer conspired to deny plaintiff service in the store because of her race); accord Tower v. Glover, 467 U.S. 914, 104 S.Ct. 2820, 81 L.Ed.2d 758 (1984).

Therefore, Moore must prove that Green and city officials conspired together to deprive him of his pre-transfer hearing. The standard for proving a civil conspiracy was set forth in Hooks v. Hooks, 771 F.2d 935 (6th Cir.1985):

A civil conspiracy is an agreement between...