Moreno v. Henckel, No. 28644.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtWISDOM, AINSWORTH, and CLARK, Circuit
Citation431 F.2d 1299
PartiesGilbert MORENO, Plaintiff-Appellant, v. Gerald C. HENCKEL, Jr., et al., Defendants-Appellees.
Docket NumberNo. 28644.
Decision Date23 September 1970

431 F.2d 1299 (1970)

Gilbert MORENO, Plaintiff-Appellant,
v.
Gerald C. HENCKEL, Jr., et al., Defendants-Appellees.

No. 28644.

United States Court of Appeals, Fifth Circuit.

September 23, 1970.


431 F.2d 1300

Pete Tijerina, Mario G. Obledo, San Antonio, Tex., for plaintiff-appellant; Alan Exelrod and James Dean Allen, San Antonio, Tex., on the brief.

Earle Cobb, Jr., Crawford Reeder, San Antonio, Tex., for defendants-appellees.

Before WISDOM, AINSWORTH, and CLARK, Circuit Judges.

WISDOM, Circuit Judge.

The plaintiff, Gilbert Moreno, brings this action under the Civil Rights Act of 1871, now codified as 42 U.S.C. § 1983,1 for injunctive relief, a declaratory judgment, and damages arising from deprivation of his First and Fourteenth Amendment rights. Jurisdiction is conferred by 28 U.S.C. § 1343.2 The district court not only abstained, but dismissed the complaint on the ground that a remedy was available to the plaintiffs in the Texas courts.3 That is not the law. "The fact that a state remedy is available is not a valid basis for federal court abstention." Hargrave v. Kirk, M.D.Fla.1970, 313 F.Supp. 944. (Dyer,

431 F.2d 1301
J., for the three-judge court). Here, the plaintiff alleges that against a background of prejudice against Mexican-Americans he was deprived of his rights to freedom of speech and petition and association; that he was discharged as a result of proceedings lacking in due process; that the city regulation under which he was discharged for "conduct prejudicial to good order"4 is unconstitutional on its face for overbreadth and vagueness. This action is one that is peculiarly appropriate for recognition of a litigant's right to choose a federal forum in which to litigate denial of federal rights. "Civil rights cases are the least likely candidates for abstention."5 And as Judge Dyer said in Hargrove, "In such a case it is the duty of a federal court to exercise its jurisdiction". Monroe v. Pape, 1961, 365 U.S. 167, 183, 81 S.Ct. 473, 5 L.Ed.2d 492; McNeese v. Board of Education, 1963, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622; and Zwickler v. Koota, 1967, 389 U.S. 241, 251, 88 S.Ct. 391, 19 L.Ed.2d 444, the three decisions principally relied on in Hargrove, control this case

I.

The City of San Antonio employed Gilbert Moreno October 7, 1968, as a security guard at the HemisFair Plaza, a city-operated World's Fair. His position entitled him to civil service status under a city ordinance. During the spring of 1969 the guards, many of whom were Mexican-American, became dissatisfied with some of the working conditions at the Plaza. The complaint alleges, and the Civil Service Commission later found, that the City had never informed Moreno of any procedure for redress of grievances. Moreno and another guard therefore went to Erasmo Andrade, a private citizen who is the head of the Federation For the Advancement of Mexican-Americans, for advice on how to make known their grievances to the City. On Andrade's advice, Moreno circulated two petitions among the twenty-four guards. The first demanded the immediate dismissal of Captain William Martin as head of the Security Guards because, among other reasons, he discriminated against "minority groups when promoting employees into higher paying and responsible positions."6

431 F.2d 1302
The second petition was similar to the first except that it demanded the dismissal of the Assistant Director of Convention and Municipal Facilities. Moreno alleged that he gave every guard a full opportunity to read the petitions and informed each man that the petitions would be submitted to the City Council; the petitions were addressed "TO THE CITY COUNCIL". On July 3 Andrade presented the petitions to the Council "in an orderly fashion", according to the stipulation. On July 9 Moreno received a letter from the Director of Convention and Municipal Facilities informing him that he had been dismissed for "conduct prejudicial to good order". Specifically the letter charged Moreno with (1) "voluntarily seeking and securing the outside aid and influence of one Erasmo Andrade who has no official connection with the Government of the City of San Antonio or the administration of its personnel"; (2) having "circulated among his fellow employees a petition or petitions listing alleged grievances and requesting the dismissal of such supervisors"; (3) having "misrepresented the nature and objective of the petitions by leading the fellow guards to believe that the purpose * * * was to secure for them a hearing with the Security Guards Captain"; (4) and having "surrendered possession of the petitions to Erasmo Andrade who thereafter presented them to the City Council". The letter states that "all of these actions were contrary to the grievance procedures of the City of San Antonio"

The letter of dismissal advised Moreno that the Civil Service Committee would give him a hearing if he requested one. On his request, the Commission conducted a hearing7 at the conclusion of which the Commission by a two to nothing vote found "there is but a mere scintilla of evidence to support the charges against the petition" that he had "misled his fellow employees into signing something other than as contained in the petition" and, moreover, he had no knowledge of established Grievance Procedures. The Commission concluded that it was unnecessary to base its decision on Moreno's First Amendment rights. It recommended that he be reinstated to his former classified position as a Security Guard of the HemisFair Grounds. The Commission's decisions however are advisory only; the decision-making power rests with the City Manager, under Personnel Rules for the City of San Antonio.

On August 15, 1969, Gerald C. Henckel, City Manager, rejected the Commission's recommendation and upheld Moreno's dismissal. Henckel was not present at the Commission's hearing. His letter to the Civil Service Commission sustaining the action of the Director

431 F.2d 1303
of Municipal Facilities states that he based his decision on the evidence presented at the hearing and "other evidence not submitted at the hearing"

Moreno then filed this action under Section 1983. He named as defendants G. C. Henckel, City Manager and F. W. Vickers, Director of Convention and Municipal Facilities, each individually and in his official capacity; and the City of San Antonio. He asked for an injunction ordering his reinstatement without loss of pay and without loss of seniority and other employment benefits; $50,000 in damages; and a declaratory judgment declaring that the defendants' actions were unconstitutional as applied to the plaintiff and that the City regulations upon which they are premised are unconstitutional on their face. After a hearing, preceded by the parties' stipulating to the facts, the district court dismissed the complaint. In the order of dismissal the court stated that an "adequate state court review of an administrative order is available to plaintiff" and, "bearing in mind the usual rule of comity, this is a proper case for the application of the abstention doctrine".

II.

We note, initially, that the district judge failed to take into account the First Amendment. From the bench he stated his understanding that "in this case plaintiff is claiming that his constitutional right of due process was violated". Again, in his order dismissing the cause, he stated that "this case involves a claim that plaintiff's constitutional right of due process was violated". Procedural due process is involved, for it is undisputed that the City Manager decided Moreno's case partly on evidence that was not brought forward at the Civil Service Commission hearing. But the main thrust of the plaintiff's case derives from the First Amendment.8 The important issue is whether the plaintiff can be compelled to assert First Amendment Rights in state courts before being allowed access to a federal forum.

III.

The district court based its holding on the mistaken theory that the plaintiff cannot choose a federal forum for assertion of federal rights if a state remedy is available. He is not alone in this error.9

431 F.2d 1304

Section 1983, as it now reads, is substantially unchanged from a provision of the Ku Klux Klan Act of 1871, sometimes called "the third force bill". Congress debated the law at length. There is no doubt that the law was aimed at southern states where remedies were nonexistent or inadequate for Negroes or Northerners asserting civil rights under the Civil War Amendments. There is also no doubt Congress fully understood that the statute extended federal authority over matters previously within the exclusive jurisdiction of state courts. In Monroe v. Pape the Supreme Court carefully considered the legislative history of § 1983.10 The Court found "threads of many thoughts running through the debates", but that "the section had three main aims". First, "it might, of course, override certain kinds of state laws", that is, "invidious legislation by States against the rights or privileges of citizens of the United States". Second, "it provided a remedy where state law was inadequate". "The third aim was to provide a federal remedy where the state remedy, though adequate in theory, was not available in practice."

The significant fact is thatMonroe v. Pape does not come within any of the "three main aims". In that case Chicago police officers, without a warrant, broke into the plaintiff's home and subjected him to various abuses.11

The Supreme Court, through Mr. Justice Douglas, did not say or imply that the state procedures or courts in Illinois were inadequate to afford redress. What the court did say, 365 U.S. at 183, 81 S.Ct. at 482, was:

Although the legislation was enacted because of the conditions that existed in the South at that time, it is cast in general language and is as applicable to Illinois as it is to the States whose names were mentioned over and again in the debates. It is no answer that the State
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66 practice notes
  • Salvati v. Dale, Civ. A. No. 73-461
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • October 5, 1973
    ...abused. See e. g., Davis v. Francois, 395 F.2d 730 (5th Cir. 1968); Hunter v. Allen, 422 F.2d 1158 (5th Cir. 1970) and Moreno v. Henckle, 431 F.2d 1299 (5th Cir. While the better practice in cases where the doctrine of abstention is to be applied is for the federal forum to retain jurisdict......
  • Bossier City Medical Suite v. City of Bossier City, Civ. A. No. 79-1336.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • January 21, 1980
    ...Public Service Commission, 547 F.2d 938, 939 n. 1 (5th Cir. 1977); Hobbs v. Thompson, 448 F.2d 456 (5th Cir. 1971); Moreno v. Henckel, 431 F.2d 1299 (5th Cir. As early as 1926, the Supreme Court held that a plaintiff attacking the constitutionality of a municipality's land-use ordinance nee......
  • Wall v. American Optometric Association, Inc., Civ. A. No. 16414
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • October 21, 1974
    ...rights cases, Harrison v. NAACP, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152 (1959), it is disfavored in such cases. Moreno v. Henckel, 431 F.2d 1299 (5th Cir. The general rule, as stated above, is that a federal court possessed of jurisdiction over a cause of action should afford relief to......
  • Hayes v. Cape Henlopen School District, Civ. A. No. 4019.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • April 11, 1972
    ...1118 (1968); and Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968). 7 The Fifth Circuit in Moreno v. Henckel, 431 F.2d 1299, 1305-1307 (1970) and the Second Circuit in Eisen v. Eastman, 421 F.2d 567-569 discuss the several Supreme Court cases involving the exhaustion d......
  • Request a trial to view additional results
66 cases
  • Salvati v. Dale, Civ. A. No. 73-461
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • October 5, 1973
    ...abused. See e. g., Davis v. Francois, 395 F.2d 730 (5th Cir. 1968); Hunter v. Allen, 422 F.2d 1158 (5th Cir. 1970) and Moreno v. Henckle, 431 F.2d 1299 (5th Cir. While the better practice in cases where the doctrine of abstention is to be applied is for the federal forum to retain jurisdict......
  • Bossier City Medical Suite v. City of Bossier City, Civ. A. No. 79-1336.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • January 21, 1980
    ...Public Service Commission, 547 F.2d 938, 939 n. 1 (5th Cir. 1977); Hobbs v. Thompson, 448 F.2d 456 (5th Cir. 1971); Moreno v. Henckel, 431 F.2d 1299 (5th Cir. As early as 1926, the Supreme Court held that a plaintiff attacking the constitutionality of a municipality's land-use ordinance nee......
  • Wall v. American Optometric Association, Inc., Civ. A. No. 16414
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • October 21, 1974
    ...rights cases, Harrison v. NAACP, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152 (1959), it is disfavored in such cases. Moreno v. Henckel, 431 F.2d 1299 (5th Cir. The general rule, as stated above, is that a federal court possessed of jurisdiction over a cause of action should afford relief to......
  • Hayes v. Cape Henlopen School District, Civ. A. No. 4019.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • April 11, 1972
    ...1118 (1968); and Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968). 7 The Fifth Circuit in Moreno v. Henckel, 431 F.2d 1299, 1305-1307 (1970) and the Second Circuit in Eisen v. Eastman, 421 F.2d 567-569 discuss the several Supreme Court cases involving the exhaustion d......
  • Request a trial to view additional results

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