Tomsick v. Jones, Civ. A. No. 77-K-137.

• Decision Date: 06 February 1979
• Docket Number: Civ. A. No. 77-K-137.
• Parties: Charles TOMSICK, Plaintiff, v. Lawrence JONES, Leonard Reis, and George Draper, Defendants.
• Court: U.S. District Court — District of Colorado

464 F. Supp. 371

Charles TOMSICK, Plaintiff, v. Lawrence JONES, Leonard Reis, and George Draper, Defendants.

Civ. A. No. 77-K-137.

United States District Court, D. Colorado.

February 6, 1979.

Maurice R. Franks, Pueblo, Colo., for plaintiff.

Benjamin L. Craig, Peter J. Wiebe, Jr., Denver, Colo., for defendants.

MEMORANDUM OPINION AND ORDER

KANE, District Judge.

This complaint was filed under 42 U.S.C. § 1983 alleging that plaintiff was wrongfully discharged by defendant members of the Custer County Board of Commissioners in violation of plaintiff's constitutionally protected right to due process and his First Amendment rights. The matter is now before the court on defendants' motion for summary judgment in which defendants argue that this action should be dismissed under the doctrine of res judicata.

Plaintiff filed this complaint on February 2, 1977 and an amended complaint on April 11, 1977. The amended complaint alleges that defendants are members of the Board of County Commissioners of Custer County, Colorado and, at a special meeting held on January 13, 1977, they illegally dismissed plaintiff from his position as a maintenance man with the county road and bridge department. Plaintiff claims that his discharge was in retaliation for exercising his First Amendment rights in expressing dissatisfaction with the conditions of employment. Plaintiff further alleges that the special meeting at which he was fired was illegal and that he was not given prior notice of the meeting in violation of procedural due process. As relief plaintiff seeks $100,000 in compensatory damages for loss of employment, back wages, loss of future wages, loss of reputation and mental anguish; $100,000 in exemplary damages for a malicious denial of rights; and $5,000 in attorney's fees expended in his attempt to gain reinstatement in state court.

In their motion for summary judgment, defendants contend that this suit is barred by res judicata because of a District Court of Custer County, Colorado judgment which ruled on whether defendants' discharge of plaintiff was in violation of the First, Fifth and Fourteenth Amendments. Tomsick v. Board of County Commissioners, Civil Action No. 1819 (Custer County District Court, October 26, 1978). Defendants have provided copies of this judgment and pertinent orders with their brief. These records disclose the Custer County District Court's denial of plaintiff's motion to amend judgment and for a new trial on November 29, 1978. Defendants maintain that the appeal period in this state action has expired, that no appeal was filed, and that the October 26 judgment is now final. Since plaintiff has not contradicted these representations with opposing affidavits, the finality of the state judgment is established.

The Supreme Court has noted with approval that "res judicata has been held to be fully applicable to a civil rights action brought under § 1983." Preiser v. Rodriquez, 411 U.S. 475, 497, 93 S.Ct. 1827, 1840, 36 L.Ed.2d 439 (1974). The judicially created doctrine of res judicata provides that when a court of competent jurisdiction has entered a final judgment on the merits of a case, the parties to the action and their privies are therefore bound "not only to every matter which was offered and received to sustain or defeat the claim or demand, but to any other admissible matter which might have been offered for that purpose." Cromwell v. Sac. County, 94 U.S. 351, 24 L.Ed. 195 (1876). The purpose of the rule is to avoid repetitious suits involving the same parties over the same cause of action. Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898 (1948).

Thus, for the purposes of determining this motion it is necessary to examine the state court proceedings that were the basis for the judgment now at issue. On April 14, 1978 the Custer County District Court entered an order setting forth its findings of fact and conclusions of law in Tomsick v. Board of County Commissioners, supra, following a trial to the court. The court found that plaintiff had been discharged from his employment at a special board meeting held on January 13, 1977. The court concluded that the discharge resulted from an incident on October 27, 1976 when plaintiff was operating a county road grader and had been sent to free another county road grader that had become stuck. A cattle owner complained to the board that several of his cattle had been struck by a county road grader on that day and had to be destroyed. Based on the cattle owner's complaint and a report by the county insurance agent, the defendant commissioners concluded that plaintiff negligently struck the cattle in question while operating a county road grader, and that plaintiff failed to report the incident. While plaintiff alleged that he had been discharged in retaliation for having previously complained about the conditions of his employment to one or more defendants, the court held that the dismissal was based solely on the cattle incident and was not in retaliation for plaintiff's prior complaints.

In ruling on plaintif...