Raymond E. Davis v. James P. Jones, Sheriff

• Decision Date: 28 September 1993
• Docket Number: 93-LW-4583,93 CA 06
• Parties: RAYMOND E. DAVIS, Plaintiff-Appellant v. JAMES P. JONES, SHERIFF, Defendant-Appellee Case
• Court: Ohio Court of Appeals

RAYMOND E. DAVIS, Plaintiff-Appellant v. JAMES P. JONES, SHERIFF, Defendant-Appellee

No. 93 CA 06.

93-LW-4583 (4th)

Court of Appeals of Ohio, Fourth District Hocking

September 28, 1993

John T Wallace, Logan, Ohio, for Appellant.

Downes & Hurst, Rufus B. Hurst, Columbus, Ohio, for Appellee.

DECISION

Stephenson J.

This is an appeal from a summary judgment entered by the Hocking County Court of Common Pleas in favor James P. Jones defendant below and appellee herein, on those claims brought against him (both individually and in his capacity as Sheriff of Hocking County, Ohio) by Raymond E. Davis, plaintiff below and-appellant herein. The following errors are assigned for our review:

I. "THE COURT BELOW ERRED IN GRANTING SUMMARY JUDGMENT AS TO PLAINTIFF'S PROCEDURAL DUE PROCESS INTEREST IN HIS JOB BECAUSE PARRATT IS NOT APPLICABLE WHEN THE CONDUCT COMPLAINED OF IS NOT 'RANDOM AND UNAUTHORIZED'."

II. "THE COURT BELOW ERRED IN GRANTING SUMMARY JUDGMENT AS TO PLAINTIFF'S UNITED STATES CONSTITUTIONAL SUBSTANTIVE DUE PROCESS AND FIRST AMENDMENT RIGHTS."

III. "THE COURT BELOW ERRED IN FINDING THAT PLAINTIFF'S UNITED STATES CONSTITUTIONAL DERIVED CLAIMS WERE SUBJECT TO A REQUIREMENT OF ADMINISTRATIVE EXHAUSTION."

The record reveals the following facts pertinent to this case. Appellant was hired by the Hocking County Sheriff's Department in 1981 and rose through the ranks to attain a detective position therein. On May 9, 1990, he was removed from that position. The parties are at odds over the reasons behind that removal. The Sheriff's Department asserted that appellant had engaged in far ranging misconduct including (1) abuse of sick leave, (2) the leak of confidential information during an investigation, (3) failure to communicate important information through the chain of command, (4) the making of negative comments about the department to non-employees thereby compromising the department's integrity and (5) the use of department information for personal gain. Appellant asserted that these reasons were all a ruse and that he had been removed because of his long involvement with union activities at the department.

In any event, the action spawned three (3) separate administrative and legal proceedings. Appellant filed a complaint with the State Employment Relations Board (hereinafter referred to as "SERB") alleging unfair labor practices. Although the original papers from those proceedings are not before us there are various references throughout the record that SERB dismissed the complaint for having been filed beyond the statute of limitations specified in R.C. Chapter 4117. An appeal of that dismissal was taken and then, eventually, dropped. Appellant also took an appeal of his removal from the Sheriff's Department to the State Personnel Board of Review (hereinafter referred to as "SPBR"). Although the appeal was dismissed by SPBR for lack of jurisdiction, we reversed and remanded the case for further proceedings. See Davis v. Hocking Cty. Sheriff (1992), 76 Ohio App.3d 843. All indications from the record and the briefs are that this action is still pending before SPBR.

On June 11, 1991, appellant commenced the action below. The complaint, and subsequent amended complaint, set forth claims for wrongful termination of employment, violation of civil rights under Section 1983, Title 42, U.S. Code, violations of state and federal constitutional provisions and intentional infliction of emotional distress. In addition to $100,000.00 in compensatory and punitive damages, appellant sought judicial determination that his removal from employment was without just cause and in violation of his civil rights as well as an order reinstating his employment and an award for back wages and benefits. Appellee filed his answer denying all liability and raising numerous defenses.

On August 18, 1992, appellee moved for summary judgment on all claims asserted against him. On January 25, 1993, the lower court granted summary judgment on the four (4) claims previously discussed herein.^[1] However, the court overruled the motion insofar as it related to a separate claim for defamation. This remaining matter came on for trial on February 22 & 23, 1993. At the conclusion of appellant's case, appellee moved for involuntary dismissal pursuant to Civ.R. 41(B)(2)(b) on the grounds that appellant had shown no right to relief. The motion was granted and a final judgment to that effect was entered on March 15, 1993. This appeal was then taken with respect to those issues previously determined on summary judgment.^[2]

Our analysis of an appeal from a summary judgment is conducted under a de novo standard of review. See Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App. 3d 103, 107; Howard v. Wills (1991), 77 Ohio App.3d 133, 139 at fn. 4; Morehead v. Conley (1991), 75 Ohio App.3d 409, 411. Accordingly, no deference is given to the decision under review and we must apply the same test as the trial court. See Bank One of Portsmouth v. Weber (Aug. 7, 1991), Scioto App. No. 90CA1920, unreported at 3. This test provides that summary judgment under Civ.R. 56 should not be granted except upon a showing that (1) there is no genuine issue as to any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, said party being entitled to have the evidence construed most strongly in his favor. Tokles & Son Inc. v. Midwestern Indemn. Co. (1992), 65 Ohio St.3d 621, 629; Bostic v. Connor (1988), 37 Ohio St.3d 144, 146; Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66. It is also well settled that the party moving for summary judgment is the one who bears the burden of showing that there exists no genuine issue of material fact. Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115, 120; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. The summary judgment entered in the cause sub judice is unusual in that it does not concern disputed issues of material fact. Rather, the trial court took all of appellant's factual allegations to be true and then went on to determine whether the law would support a claim for relief on those facts. The standard of review under these circumstances is more akin to a motion to dismiss for failure to state an actionable claim. See Kwait v. John David Management Co. (1974), 42 Ohio App. 2d 63, 65. This court will apply the same principle in considering the arguments posited for our review.

We first consider, out of order, the third assignment of error wherein appellant argues that the lower court erroneously held his civil rights claims to a requirement of "administrative exhaustion."^[3] However, our review of the court's judgment entry, as well as the explanatory memorandum which followed, reveal no mention of an "administrative exhaustion" requirement. It would seem that appellant's entire argument is premised on the lower court's citation to the case of Provens v. Stark Cty. Bd. of Mental Retardation & Developmental Disabilities (1992), 64 Ohio St.3d 252. If that is the basis for his argument, then appellant has misinterpreted both the memorandum of the lower court and the decision of the Ohio Supreme Court in Provens.

It should be noted at the outset that appellant's complaint and amended complaint set forth claims under both civil rights and constitutional provisions. The lower court cited to the Provens decision in that portion of its memorandum which addressed both the "civil rights and constitutional issues." (Emphasis added.) The distinction between these two issues is important. The Supreme Court in Provens, supra at 261, held that no private remedy exists to compensate an individual who asserts that a public employer has violated his rights under the Ohio Constitution. Thus, public employees do not have a private cause of action against their employer to address constitutional violations of policies embodied therein. Id. at the syllabus. This conclusion was reached after analyzing a comparable decision by the United States Supreme Court which found no private cause of action by federal employees to recover damages from employers who interfered with their First Amendment rights. See generally Bush v. Lucas (1983), 462 U.S. 367, 390. These cases, taken together, indicate that public employees have no inherent independent right to relief for constitutional violations by their employers. Such relief must come, and is in fact provided for, by statute.

This is an entirely different matter from claims which are brought under the provisions of Section 1983, Title 42, U.S. Code. In fact, the civil rights provisions were the very vehicle enacted by Congress to enforce the Fourteenth Amendment and give private remedial relief to those deprived of constitutional rights by state agents acting;under a badge of authority. See Monroe v. Pape (1961), 365 U.S. 167. Appellant's arguments fail to distinguish between this remedy for violation of constitutional rights and the violation of those rights themselves. The lower court did not impose an "administrative exhaustion" requirement on appellant's civil rights claim and it did not dismiss such claim for failure to meet that requirement. Rather, the lower court relied on Provens and Bush as authority for granting summary judgment on the independent constitutional claims pled along therewith. That judgment was appropriate.

Our colleagues on the Hamilton County Court of Appeals dealt with the same issue in Jackson v. Kurtz (1979), 65 Ohio App.2d 152, wherein they were called upon to review the dismissal of several claims including one for violation of civil rights under Section 1983, Title 42, U.S. Code and...