Thompson v. Bass

• Decision Date: 14 May 1980
• Docket Number: Nos. 76-4475,77-2292,s. 76-4475
• Parties: Jack THOMPSON, Plaintiff-Appellee, v. Ray D. BASS, etc., et al., Defendants, Dan H. Turner, etc., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1259

616 F.2d 1259

Jack THOMPSON, Plaintiff-Appellee, v. Ray D. BASS, etc., et al., Defendants, Dan H. Turner, etc., Defendant-Appellant.

Nos. 76-4475, 77-2292.

United States Court of Appeals, Fifth Circuit.

May 14, 1980.

Robert S. Lamar, Jr., Clyde C. Owen, Jr., Montgomery, Ala., for defendant-appellant.

Alvin T. Prestwood, Montgomery, Ala., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Alabama.

Before AINSWORTH and VANCE, Circuit Judges, and BOOTLE, District Judge ^*.

VANCE, Circuit Judge:

In this 42 U.S.C. § 1983 ¹ action, the jury awarded Jack Thompson, a former Alabama Highway Department pilot damages in the amount of $20,000 for deprivation of his constitutional rights under the first and fourteenth amendments by Dan H. Turner, assistant highway director. In addition, the trial court awarded Thompson $8,000 in attorneys' fees under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988. Turner appeals both judgments. We conclude that because of the insufficiency of the evidence against Turner, the trial court erred in failing to grant Turner's motion for a directed verdict or judgment notwithstanding the verdict and in awarding attorneys' fees.

I.

In 1968, Thompson became a pilot in the aviation section of the Alabama Highway Department. He received permanent pilot II classification under the state merit system on March 19, 1971. Thompson served as the aviation section's chief pilot, ² supervising and directing the activities of the section's other pilots, from September 22, 1971, until March 1973.

In November 1972, the secretary for Ray D. Bass, the Alabama highway director, telephoned Thompson and told him to bring the section's flight records to Bass' office to show a Birmingham News reporter whatever he requested. The reporter sought information about flights by Harry Pennington, the executive secretary to Governor Wallace. Thompson disclosed and explained the pertinent records and answered related questions. On November 19, 1972, the Birmingham News ran an article describing Pennington's use of state planes for personal business. Thompson subsequently acknowledged that he was the unidentified pilot who was quoted as expressing displeasure with Pennington's conduct.

In December 1972, one month after the Birmingham News article appeared, Turner became the assistant highway director. Turner suggested to Bass that Thompson be replaced as chief pilot. Other pilots in the section also voiced their dissatisfaction with Thompson's continued tenure as chief pilot. Although Thompson had received two excellent efficiency reports from his predecessor, the other pilots questioned his flying and administrative abilities, his capacity to deal effectively with his coworkers, and his tendency not to schedule himself enough flights. The pilots presented their grievances to Bass during two meetings in March 1973. Bass then relieved Thompson of his position as chief pilot. Bass testified that morale and administrative concerns, not flying ability, were the bases for his action.

Turner and Bass held a meeting of all state pilots shortly thereafter. Thompson left this meeting believing that operating procedures had been changed so that pilots were not to report daily to the hangar but were to remain at home on call. Consequently, Thompson ceased going to the hangar except to pilot pre-scheduled flights. At approximately the same time, all locks to the hangar and the office area where the flight status board was situated were changed. All pilots, except Thompson, received new keys. Turner acknowledges that he ordered keys to be withheld from Thompson because he was suspected of having stolen various items from these facilities. Unlike the other pilots, Thompson was denied a mail basket and a telephone credit card, was not allowed to attend flight schools or seminars, and was not notified of pilots' meetings. Despite these incidents, Thompson continued flying state planes until his discharge. At no time during this period was Thompson told that his ability was deficient.

With the approval of Bass, Turner wrote Thompson, on September 24, 1975, dismissing him from his permanent merit system position of pilot II effective October 1, 1975. The letter stated four ostensibly legitimate reasons for the discharge. ³ Thompson appealed his dismissal to the Alabama Personnel Board on October 6, 1975. After a full hearing that board found Thompson had been wrongfully terminated from his job, because the evidence was not sufficient to sustain Turner's charges against Thompson. It reinstated Thompson to his pilot II position with full back pay on April 1, 1976.

After his reinstatement, Thompson claims to have been ostracized by his coworkers and treated differently from the other pilots. He was denied a state car, telephone and gasoline credit cards, a personal signaling device, and a key to the office, although he was given a hangar key. He resigned for these reasons on April 12.

Three months later Thompson instituted this section 1983 action against Governor Wallace, Bass, Turner, Senior Pilot Mitchell Sexton, and C. W. Anderson, a member of the state personnel board. All defendants filed motions to dismiss. The district court entered summary judgment in favor of Governor Wallace, but denied the motions of the other defendants on the condition that Thompson amend his complaint to specify the particular acts charged against each defendant. In his amended complaint, Thompson charged the remaining defendants individually and jointly with punishing him for exercising his first amendment rights and with depriving him of his position without due process of law.

The case was tried before a jury in October 1976. When Thompson finished presenting his evidence, the court granted C. W. Anderson a directed verdict, but denied the other defendants' motions for directed verdicts. The jury subsequently found that Bass and Sexton were not liable to Thompson, and returned a $20,000 verdict against Turner. Turner filed a motion for a new trial or judgment notwithstanding the verdict, which the court denied. On Thompson's motion, the court awarded him attorneys' fees of $8,000 to be paid by Turner.

Turner appeals the jury's verdict and the award of attorneys' fees. He argues that Thompson did not state a claim on which section 1983 relief could be granted and that Thompson's evidence was not sufficient to support the jury's verdict. We reverse. Thompson's amended complaint adequately stated a claim under section 1983, but Thompson's proof was not sufficient to establish Turner's liability.

II.

A complaint should not be dismissed under Fed.R.Civ.P. 12(b)(6) for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). Accord, Cruz v. Skelton, 543 F.2d 86, 88 (5th Cir. 1976), cert. denied, 433 U.S. 911, 97 S.Ct. 2980, 53 L.Ed.2d 1096 (1977); Cook & Nichol, Inc. v. Plimsoll Club, 451 F.2d 505, 506-07 (5th Cir. 1971). To be entitled to section 1983 relief, a plaintiff must prove that (1) a defendant acting under color of state law (2) deprived him of a constitutionally protected right. Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970), Smith v. YMCA of Montgomery, Inc., 462 F.2d 634, 647 (5th Cir. 1972). Turner does not dispute that, as Alabama's assistant highway director, he acted under color of state law. In his rather jumbled complaint Thompson alleged that Turner deprived him and conspired to deprive him of several rights secured by the first amendment and the due process clause of the fourteenth amendment. Some, but not all, of Thompson's allegations would, if proved, have entitled him to relief.

Thompson primarily claimed that Turner, conspiring with the other defendants, ostracized him by denying him certain job privileges given the other pilots, relieved him of his duties as chief pilot, relegated him to a subordinate position among pilots in the highway department, then dismissed him to punish him for giving information to the Birmingham News reporter. After his reinstatement, Thompson asserts, Turner and the other defendants forced him to resign by their continued harassment for the same reason. An action for damages under section 1983 can clearly be based on a claim that a person acting under color of state law denied a claimant rights guaranteed by the first amendment, applied to the states through the fourteenth amendment. Moreno v. Henckel, 431 F.2d 1299, 1305 (5th Cir. 1970). Thompson would thus have been entitled to relief had he proved his allegation that Turner discharged him or forced him to resign to punish him for exercising his first amendment right of free speech, and the court properly denied Turner's motion to dismiss Thompson's first amendment claim. See Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972); Stewart v. Bailey, 556 F.2d 281, 284 (5th Cir. 1977); Rainey v. Jackson State College, 435 F.2d 1031, 1034-35 (5th Cir. 1970).

In his complaint, Thompson also asserted that, in dismissing him and forcing him to resign, Turner and the other defendants violated the procedural and substantive due process guarantees of the fourteenth amendment. See generally Bowling v. Scott, 587 F.2d 229, 231 (5th Cir.), cert. denied, --- U.S. ----, 100 S.Ct. 69, 62 L.Ed.2d 45 (1969); Stapp v. Avoyelles Parish School Board, 545 F.2d 527, 534 (5th Cir. 1977); Ferguson v. Thomas, 430 F.2d 852, 857-59 (5th Cir. 1970). Unlike the first amendment guaranty, which applies regardless of the claimant's interest in his or her state job, Mt. Healthy City School District v. Doyle, 429 U.S. 274, 283-84, 97 S.Ct. 568, 574, 50 L.Ed.2d 471 (1977), a claimant ordinarily ⁴ is not entitled to procedural and substantive...