Primas v. City of Oklahoma City
| Decision Date | 16 March 1992 |
| Docket Number | Nos. 90-6054,90-6059,90-6055,90-6191,s. 90-6054 |
| Citation | 958 F.2d 1506 |
| Parties | Arthur M. PRIMAS, Plaintiff-Appellee, and Brenda M. Primas, Plaintiff, v. The CITY OF OKLAHOMA CITY, a municipal corporation; Fred Anderson, individually and as Assistant Municipal Counselor and employee of the City of Oklahoma City, through the Municipal Counselor's Office; Terry Childers, individually and as City Manager and employee of the City of Oklahoma City; Don Pennington, a police officer and employee of the City of Oklahoma City, through the Oklahoma City Police Department, Defendants, and Fred Hays, individually and as Assistant City Manager and employee of the City of Oklahoma City, through the City Manager's Office, Defendant-Appellant. Arthur M. Primas, Plaintiff-Appellee, and Brenda M. PRIMAS, Plaintiff, v. The CITY OF OKLAHOMA CITY, a municipal corporation; Fred Anderson, individually and as Assistant Municipal Counselor and employee of the City of Oklahoma City, through the Municipal Counselor's Office; Terry Childers, individually and as City Manager and employee of the City of Oklahoma City; Fred Hays, individually and as Assistant City Manager and employee of the City of Oklahoma City, through the City Manager's Office, Defendants, and Don Pennington, a police officer and employee of the City of Oklahoma City, through the Oklahoma City Police Department, Defendant-Appellant. Arthur M. Primas, Plaintiff-Appellant, and Brenda M. PRIMAS, Plaintiff, v. The CITY OF OKLAHOMA CITY, a municipal corporation; Terry Childers, individually and as City Manager and employee of the City of Oklahoma City; Fred Hays, individually and as Assistant City Manager and employee of the City of Oklahoma City, through the City Manager's Office; Don Pennington, a police officer and employee of the City of Oklahoma City, through the Oklahoma City Police Department, Defendants-Appellees, and Fred Anderson, individually and as Assistant Municipal Counselor and employee of the City of Oklahoma City, through the Municipal Counselor's Office, Defendant. Arthur M. PRIMAS; Brenda |
| Court | U.S. Court of Appeals — Tenth Circuit |
Marjorie Patmon of Patmon & Associates, Oklahoma City, Okl., for plaintiffs Arthur M. Primas and Brenda M. Primas.
Gerald P. Green and Chris Condren of Pierce Couch Hendrickson Johnston & Baysinger, Oklahoma City, Okl., for defendant-appellant Fred Hays.
James G. Hamill, Municipal Counselor, Jonathan D. Woods and Richard C. Smith, Assistant Municipal Counselors, Oklahoma City, Okl., for defendant Don Pennington.
Robert H. Alexander, Jr. of The Law Office of Robert H. Alexander, Jr., Oklahoma City, Okl., for defendant Terry L. Childers.
James G. Hamill, Municipal Counselor, Richard C. Smith, Assistant Municipal Counselor, Oklahoma City, Okl., for defendant Fred Anderson.
James G. Hamill, Municipal Counselor, Gerald S. Rakes, Asst. Municipal Counselor, Oklahoma City, Okl., for defendant City of Oklahoma City.
Before MOORE, TACHA and BRORBY, Circuit Judges.
These are appeals and a cross appeal of various Orders granting and denying summary judgment and awarding sanctions against Plaintiffs as to one Defendant in this action alleging civil rights violations and pendent state claims. Although each appeal will be addressed separately below, a summary of the facts and proceedings helpful to an understanding of the action will be presented first. 1
Plaintiff Arthur M. Primas was employed for seven years as an events coordinator for the Defendant City of Oklahoma City (City) at the Myriad Convention Center. Mr. Primas allegedly sold complimentary tickets to a Neil Diamond concert. Based on the allegation, an investigation was conducted and eventually charges of scalping tickets were filed. Shortly thereafter, Mr. Primas was suspended from employment with pay. The day he was suspended, Defendant Fred Hays, assistant city manager, participated in a television interview concerning the investigation and charges.
A jury trial was held on the scalping charges. After the City rested, the court granted the motion of Defendant Fred Anderson, a municipal counselor, for mistrial. The Oklahoma Court of Criminal Appeals granted Mr. Primas' Petition for Writ of Prohibition and prohibited retrial on double jeopardy grounds.
Mr. Primas and his wife Brenda M. Primas commenced this action against Defendants City, Mr. Hays, Mr. Anderson, Don Pennington, a police officer, and Terry Childers, the city manager, by filing a complaint raising seven causes of action pursuant to 42 U.S.C. §§ 1981, 1982, and 1983, the Fifth and Fourteenth Amendments, and state law. In the first cause of action, Mr. Primas alleged that Mr. Anderson, Mr. Childers, Mr. Hays, Mr. Pennington, and the City deprived him of his liberty and property interests without due process of law. The second cause of action asserted a claim for wrongful termination based on race in violation of 42 U.S.C. §§ 1981 and 1982 against the City, Mr. Childers, and Mr. Hays. In the third cause of action, Mr. Primas contended that the City, Mr. Childers, and Mr. Hays breached his employment contract. Mr. Primas alleged in the fourth cause of action that the City, Mr Childers, and Mr. Hays invaded his privacy. In the fifth cause of action, Mr. Primas alleged that the City, Mr. Childers, Mr. Hays, Mr. Pennington, and Mr. Anderson maliciously prosecuted him and conspired to falsely charge him. Also, in the fifth cause of action, Mrs. Primas asserted a claim for loss of consortium. The sixth cause of action alleged that Mr. Hays and Mr. Anderson engaged in slanderous communication. The seventh cause of action was a claim under the Oklahoma Governmental Tort Claims Act, Okla.Stat. tit. 51, §§ 151-171.
Mr. Hays filed a motion for summary judgment. The district court granted the motion in part, concluding Mr. Primas was not deprived of a property interest without due process of law. The district court denied summary judgment on the liberty interest claim. Mr. Hays appealed the denial of summary judgment on the liberty interest claim (No. 90-6054).
Mr. Pennington also filed a motion for summary judgment. The district court granted summary judgment on the liberty and property interest deprivation claims, but denied summary judgment as to qualified immunity. Mr. Pennington appealed the partial denial of summary judgment (No. 90-6055).
Each Defendant, other than Mr. Anderson, filed a motion or partial motion for summary judgment on Mr. Primas' claim for deprivation of a property interest. The district court granted Defendants' motions on the property interest claim. Mr. Primas appealed (No. 90-6059).
The district court entered an Order awarding attorney's fees to Mr. Anderson, after Mr. and Mrs. Primas failed to respond to the request for fees. Mr. and Mrs. Primas appealed the granting of attorney's fees to Mr. Anderson (No. 90-6191).
When reviewing a summary judgment order, we apply the same standard employed by the trial court under Rule 56(c) of the Federal Rules of Civil Procedure. "The moving party carries the burden of showing beyond a reasonable doubt that it is entitled to summary judgment, and the court must review the record in the light most favorable to the opposing party."
Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991) (citations omitted). "Summary judgment is appropriate when there is no genuine dispute over a material fact and the moving party is entitled to judgment as a matter of law." Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir.1991).
Mr. Hays appeals from the portion of the district court's Order denying him qualified immunity on Mr. Primas' claim that Mr. Hays violated Mr. Primas' liberty interest in his employment. We reverse, concluding that Mr. Primas failed to state a violation of a liberty interest.
After the criminal charges were filed, Mr. Hays was interviewed for a television broadcast. The broadcast consisted of an interview of Mr. Hays along with narration by a newscaster. The broadcast was as follows:
Newscaster: Two employees of Oklahoma City have been charged with scalping tickets to a recent concert at the Myriad. Municipal Court records show City employees Sandra Cole and Arthur Primas allegedly sold complimentary tickets to the February 17th Neil Diamond concert.
Mr. Hays: We feel the investigation will show whether or not it was indeed a practice for a period of time, whether employees have been doing this procedure, or whether or not we need to move to other items.
Newscaster: Hays says steps have been taken to prevent future ticket scalping. The two employees are currently suspended with pay.
Based on the interview, Mr. Primas alleged that Mr. Hays deprived him of his liberty interest without due process of law by making false defamatory statements. Mr. Hays filed a motion for summary judgment alleging the statements made by him were true. The district court denied the motion, concluding that there was a genuine issue of material fact concerning deprivation of Mr. Primas' liberty interest. The district court determined that if the statements were true, they were made true only by Defendants' acts of filing charges, conducting an investigation, and suspending Mr. Primas. If the charges were unfounded, the district court decided that publishing the fact that they had been filed...
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