Starke v. Bergles
| Decision Date | 16 January 1978 |
| Docket Number | No. 77-C-330.,77-C-330. |
| Citation | 444 F. Supp. 469 |
| Parties | Murill STARKE, Plaintiff, v. Russel BERGLES et al., Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Swartwout & Heiber by Willis B. Swartwout, III, New Berlin, Wis., for plaintiff.
Willis J. Zick, Corp. Counsel, Waukesha, Wis., for Chase & Willert.
August E. Fabyan, Jr., Village Atty., Hartland, Wis., for all other defendants.
DECISION and ORDER
All defendants except James M. Chase and John Willert have moved to dismiss this action pursuant to Rule 12, Federal Rules of Civil Procedure. In resolving this motion, the court will consider only the defendants' brief in support and the plaintiff's brief in opposition; the defendants' reply brief will not be considered in view of their failure to comply with the briefing schedule prescribed in Rule 6.01 of the local rules of this district.
I note that the movants, in this rejected reply brief, argue for the first time that this action should be dismissed on abstention grounds. Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977). The plaintiffs have had no opportunity to respond to this argument. Moreover, the defendants cite no authority to indicate whether any or all of the issues or remedies involved in this action are available in the related state certiorari proceeding. The defendants' procedural default in the filing of their brief, the importance of the abstention question, and the inadequacy of the present record convince me that the best course is to dismiss the defendants' abstention argument at this time without prejudice.
The complaint sets forth four causes of action. Only the first, third and fourth pertain to the instant motion. Each of them arises out of the plaintiff's discharge as police chief for the village of Pewaukee.
The village of Pewaukee and its police committee contend that they must be dismissed for lack of subject matter jurisdiction because they are not persons within the meaning of 42 U.S.C. § 1983. City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973). The plaintiff does not dispute this argument but contends that subject matter jurisdiction can be acquired pursuant to 28 U.S.C. § 1331 because the complaint alleges claims arising under the United States Constitution and the amount in controversy exceeds $10,000.
I have previously approved of the plaintiff's § 1331 theory for acquiring subject matter jurisdiction over a village board. Jenner v. Board of Trustees of the Village of East Troy, 389 F.Supp. 430 (7 Cir. 1974). The court of appeals for this circuit has also held that § 1331 confers jurisdiction over a municipality alleged to have deprived a person of fourteenth amendment rights. Calvin v. Conlisk, 520 F.2d 1, 8-10 (7 Cir. 1975), vacated and remanded on other grounds 424 U.S. 902, 96 S.Ct. 1093, 47 L.Ed.2d 307 (1976). See also Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 277-78, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977).
Although the jurisdictional statement in the complaint does not refer to § 1331, allegations sufficient to support a § 1331 claim are apparent on its face. The amount in controversy is well in excess of $10,000, and the defendants are alleged to have violated the plaintiff's right to due process under the fourteenth amendment. The plaintiff's failure specifically to mention § 1331 in the jurisdictional statement is not fatal. City Federal Savings and Loan Ass'n v. Crowley, 393 F.Supp. 644, 650 (E.D.Wis. 1975). Accordingly, the motion to dismiss for lack of subject matter jurisdiction will be denied.
The defendants contend that this action is barred on res judicata grounds because the instant claims were not raised by the plaintiff in his petition for a writ of certiorari filed in the state circuit court for review of the village board's decision to discharge him.
The plaintiff argues that the res judicata argument must be rejected on two grounds: (1) The record is barren as to what issues were presented at the certiorari proceeding, and (2) the scope of a certiorari proceeding is different from the instant action. The present record does not reveal whether a final judgment on the merits of the instant cause of action between the instant parties has been entered in any court of competent jurisdiction. Omernick v. LaRocque, 406 F.Supp. 1156 (W.D.Wis.1976). Furthermore, the defendants cite no authority to show that the damage and injunctive relief claims brought herein are claims which either were or could have been brought in the certiorari proceeding. I therefore find that the defendants' res judicata argument has no merit.
The defendants next argue that various causes of action must be dismissed for failure to state claims upon which relief can be granted.
Each cause of action alleges that the plaintiff occupied the position of chief of police for the village of Pewaukee; that such position is a classified civil service position of permanent tenure; that the police chief can be removed only for cause; that a hearing was held before the village of Pewaukee police committee to hear and determine charges against the plaintiff, as authorized by village ordinance; that as a result of the hearing the police committee made findings that discipline was warranted and imposed certain sanctions against the plaintiff but reinstated him to his position; that the village board rejected the police committee's reinstatement decision and discharged the plaintiff; that as a result of the discharge the plaintiff has suffered a loss of earnings and benefits; he has incurred and will continue to incur legal fees in connection with his defense; and he has suffered injury to his reputation as a police officer and injury to his ability to secure future employment in his field. Other allegations of the complaint will be referred to hereinafter.
The defendants argue that the first cause of action must be dismissed because insufficient facts are alleged to indicate a conspiracy to deprive the plaintiff of any constitutionally protected right. It is argued that the acts of which the plaintiff complains were undertaken in the course of the defendants' duties as public officials and that the plaintiff has no constitutional right to prevent them from performing their designated responsibilities.
In the first cause of action it is alleged that the defendants Muehl, Bergles, O'Neill and Fabyan conspired "to oust the plaintiff from his position for political or personal reasons without regard to due process of law." Several acts are alleged to have been committed by the defendants in furtherance of the conspiracy, and such acts are claimed to have deprived the plaintiff of his right under the due process clause of the fourteenth amendment to an impartial decisionmaker and to an impartial decision based solely on the evidence presented at the hearing.
The defendants' assertion that all of their acts were taken in the course of their duties as public officials does not entitle them to a dismissal; the essence of a § 1983 action is to secure redress for a constitutional deprivation effected by a public official or other person armed with state authority. The defendants' contention that the plaintiff has no constitutional right to prevent the defendants from performing their official responsibilities misapprehends the nature of the plaintiff's complaint. Mr. Starke does not claim to be constitutionally immune from investigation of alleged misconduct or to be free from sanctions or discharge for cause; rather, he claims...
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