Smith v. Turner

Citation764 F. Supp. 632
Decision Date25 March 1991
Docket NumberCiv. A. No. 1:89-CV-0907-JOF.
PartiesLee Roy SMITH, Plaintiff, v. Dal TURNER, Individually and in his capacity as Chairman of the Clayton County Board of Commissioners; John King, individually and in his capacity as Chief County Administrator of Clayton County, Georgia; Byron Ray Pate, individually and in his capacity as Assistant County Administrator of Clayton County, Georgia; Charles M. Workman, individually and in his capacity as Chief Appraiser and member of the Board of Tax Assessors, Defendants.
CourtU.S. District Court — Northern District of Georgia

COPYRIGHT MATERIAL OMITTED

Lee Sexton, Sexton, Turner & Moody, Jonesboro, Ga., for plaintiff.

Larry A. Foster, Foster & Foster, Jonesboro, Ga., Thomas Ryan Mock, Jr., Carey Edward Fox, Freeman & Hawkins, Atlanta, Ga., for defendants.

ORDER

FORRESTER, District Judge.

This matter is before the court on defendants Turner, King, Pate and Workman's motion for summary judgment on plaintiff's complaint.1 Plaintiff brought this action on May 2, 1989 seeking damages and injunctive relief under 42 U.S.C. §§ 1983, 1985 and 1988 for violations of the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, and seeking damages for slander under state tort law.

In Count One of the complaint, plaintiff alleges that defendants "wilfully, maliciously, and deliberately conspired" to deprive plaintiff of his continued employment and office with Clayton County, Georgia. Count Two alleges an agreement to engage in a course of conduct calculated to "humiliate, embarrass, vilify and ridicule" plaintiff with the "sole, expressed purpose" of depriving plaintiff of his employment and office. Count Three is a state tort law damages claim for slander under O.C.G.A. § 51-5-4(a)(3). Count Four alleges a conspiracy by the defendants to "circumvent the democratic process" and wilfully deprive the citizens of Clayton County, Georgia of an independent and autonomous Board of Tax Assessors. Plaintiff alleges this conspiracy has injured him in violation of the Constitution and 42 U.S.C. §§ 1983, 1985, and 1988. He seeks monetary damages and an injunction prohibiting defendants from interfering with plaintiff's performance of his statutory duties.

I. STATEMENT OF THE CASE

Plaintiff Lee Roy Smith was appointed to the Clayton County Board of Tax Assessors for a six year term beginning January 1, 1988. Complaint, ¶¶ 1, 2. In January or February of 1988, plaintiff was elected chairman of the three person board. Smith Depo., p. 21. Defendant Dal Turner was elected Chairman of the Clayton County Board of Commissioners of Clayton County, Georgia in the fall of 1988 and took office on January 1, 1989. Turner Aff., ¶ 2.

Shortly after taking office, Turner went to Smith and demanded that Smith resign his position as Chairman of the Board of Tax Assessors. Turner Aff., ¶ 6. When Smith refused, Turner declared his intent to do everything he could to remove Smith from office. Turner Depo., p. 62. In spite of lobbying efforts by Turner to have defendant Workman, also a member of the Board of Tax Assessors, elected as chairman, plaintiff Smith was elected to a second one year term on January 26, 1989. Turner Depo., pp. 41, 62-63.

Turner has testified that a subsequent investigation by the Board of Commissioners revealed mismanagement of the Tax Assessor's Office and misconduct by the plaintiff. Turner Aff., ¶ 7. The Board of Commissioners then hired the accounting firm of Touche Ross & Company to conduct a limited audit of the Tax Assessor's Office. Turner Aff., ¶ 8. The results of the report were made public, and, though the audit did not mention the plaintiff by name, defendant made statements to the press and others that he believed Smith was incompetent to serve as a tax assessor. Turner Aff., pp. 85, 86.

When plaintiff filed this action in May of 1989 he still held his office as Chairman of the Board of Tax Assessors. On July 14, 1989, Smith received notice from the Clayton County attorney of a hearing before the Board of Commissioners for the purpose of removing him from his position as a member of the Board of Tax Assessors — an action that would also have effectively removed him as chairman. Turner Aff., ¶ 10, Exhibit B. Smith obtained a temporary restraining order from the Superior Court of Clayton County prohibiting the Commission from holding the hearing until Smith was afforded an opportunity for a hearing before the judge of the Superior Court of Clayton County pursuant to O.C.G.A. § 48-5-295(b). Turner Aff., ¶ 11. After a hearing, Superior Court Senior Judge Whitmire recommended that Smith not be removed from office. Turner Aff., ¶ 12. The Board of Commissioners did not hold a removal hearing. Turner Aff., ¶ 12. Plaintiff Smith continued in office as Chairman of the Board of Tax Assessors until January 9, 1990. Yeargin Aff., ¶ 3.

In January of 1990, Bonnie Yeargin, one of the three members of the Board of Tax Assessors, called a meeting to elect a new chairman for 1990. Smith maintained that only the chairman of the board had the authority to call a meeting and refused to attend. Charles Workman, the third member of the board, attended the meeting and Yeargin was elected chairman. Workman Aff., ¶¶ 11-13; Yeargin Aff., ¶ 6.

Defendants maintain that none of them has taken any further action to remove the plaintiff from his office following the issuance of Judge Whitmire's recommendation. Turner Aff., ¶ 13. Plaintiff Smith alleges that, subsequent to the judge's recommendation, the defendants have continued their conspiracy to disable him from performing his statutory duties as an assessor by denying him access to a county vehicle, by denying him access to the Clayton County computer system, by requiring him to vacate the office from which he conducted county business, and by excluding him from the activities and decision making processes of the Board of Tax Assessors. Smith Aff., ¶¶ 43-46.

II. CONCLUSIONS OF LAW
A. Grounds for Summary Judgment

Defendants have moved for summary judgment on the complaint.2 They argue that plaintiff has failed to state a claim under 42 U.S.C. § 1983 because he has failed to demonstrate the deprivation of a constitutionally protected right or property interest. Defendants also argue that the complaint cannot support a claim for conspiracy under 42 U.S.C. § 1985(3) because plaintiff has failed to state his claim with necessary specificity and has failed to allege a conspiracy motivated by a racially based animus. Defendants contend that plaintiff's state law slander claim should be dismissed because defendant Turner's statements were privileged and because plaintiff has failed to show actual malice. Finally, defendants assert the defense of qualified immunity.

B. Plaintiff's Conspiracy Claims

Count One of the complaint alleges a conspiracy to deprive plaintiff of his position as a member of and his office as Chairman of the County Board of Tax Assessors. Count Two essentially alleges a conspiracy to deprive plaintiff of his position and office by damage to his reputation. Plaintiff asserts these conspiracy claims under both 42 U.S.C. § 1983 and 42 U.S.C. § 1985.3

1. Section 1985 Claims

To recover under § 1985(3), plaintiff must allege 1) a conspiracy; 2) for the purpose of depriving, directly or indirectly, any person or class of persons of the equal protection of the laws or of equal privileges and immunities under the laws; 3) an overt act in furtherance of the object of the conspiracy; and 4) that the plaintiff was injured in his person or property. Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971); Byrd v. Clark, 783 F.2d 1002 (11th Cir.1986).

The language of § 1985(3) that requires the intent to deprive one of equal protection or equal privileges means that a plaintiff must allege some racial or otherwise class-based discriminatory animus behind the conspirators' action. Cook v. Houston Post, 616 F.2d 791, 795 (5th Cir.1980). In Griffin, the Supreme Court expressly declined to decide whether § 1985(3) gave a cause of action against conspiracies motivated by invidiously discriminatory intent that was not racially based. 403 U.S. at 102 n. 9, 91 S.Ct. at 1798 n. 9. In United Brotherhood of Carpenters v. Scott, the Supreme Court stated that "it is a close question whether 1985(3) was intended to reach any class-based animus other than animus against Negroes and those Republicans and Northerners who championed their cause" and, in dictum, declined to extend the reach of § 1985(3) to conspiracies not motivated by racial bias. United Broth. of Carpenters and Joiners of America, Local 610, AFL-CIO v. Scott, 463 U.S. 825, 833-834, 836, 103 S.Ct. 3352, 3358-3359, 3360, 77 L.Ed.2d 1049 (1983).

The Eleventh Circuit has not addressed the question of whether § 1985(3) reaches non-racial political conspiracies. The Fifth, Sixth and Seventh Circuits have for the most part continued to allow actions for purely political conspiracies. See Galloway v. State of La., 817 F.2d 1154, 1159 (5th Cir.1987) (plaintiff must be member of group with inherited or immutable characteristics—e.g., race, gender, religion, or national origin — or show that discrimination resulted from plaintiff's political beliefs or associations); Hamill v. Wright, 870 F.2d 1032, 1038 (5th Cir.1989) (class protected by 1985(3) must be characterized by some inherited or immutable characteristic or by political beliefs or associations); Rice v. Ohio Dept. of Transp., 887 F.2d 716 (6th Cir.1989) (holding membership in "discrete group" necessary to support claim under civil rights conspiracy statute but not reaching validity of holdings in line of pre-Scott cases that a group of persons holding similar political views can be a "class of persons" for purposes of 1985(3)); Volk v. Coler, 845 F.2d 1422, 1434 (7th Cir.1988) ("1985(3) extends beyond conspiracies to discriminate against persons based on race to...

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    ...F.2d 1002, 1007 (11th Cir.1986); see also Lucero v. Operation Rescue of Birmingham, 954 F.2d 624, 627 (11th Cir.1992); Smith v. Turner, 764 F.Supp. 632, 636 (N.D.Ga.1991). As with a claim alleging a violation of equal protection, the intent to deprive one of equal protection must contain so......
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    ...of a liberty or property interest under the constitution sufficient to create an action under Section 1983); Smith v. Turner, 764 F.Supp. 632, 640 (N.D.Ga.1991) (same). Furthermore, any declaration regarding reputation alone would essentially amount to the same kind of "gratuitous comment" ......
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