Underwood v. Waddell

Decision Date23 July 1990
Docket NumberNo. IP89-600-C.,IP89-600-C.
Citation743 F. Supp. 1291
PartiesThomas A. UNDERWOOD, Plaintiff, v. Roy D. WADDELL, Individually, and as Sheriff, Hendricks County, Indiana, Defendants, and Indiana Sheriff's Association, Intervenor-Defendant.
CourtU.S. District Court — Southern District of Indiana

Kenneth Collier-Mager, Stephenson and Kurnik, Indianapolis, Ind., for plaintiff.

John C. Ruckelshaus, Ruckelshaus Roland Hasbrook & O'Connor, Indianapolis, Ind., for defendants.


McKINNEY, District Judge.

This cause comes before the Court on the motion for summary judgment filed by Sheriff Waddell. The issues raised have been briefed and are ready for resolution. For the reasons set forth below, the Court GRANTS IN PART the motion.

I. Factual and Procedural Background:1

Defendant Roy Waddell assumed the office of Hendricks County Sheriff in 1983, and appointed plaintiff Thomas Underwood as his Chief Deputy. Waddell and Underwood had been friends for many years, and had previously worked together with the State Police. When Waddell ran for Sheriff in 1983, Underwood helped him campaign in the primary and the general election.

Prior to being appointed as Chief Deputy, Underwood was not a member of the Hendricks County Sheriff's Department. Underwood was appointed solely by Sheriff Waddell, and did not go through the Merit Board system of hiring through which regular deputies are hired. The position of Chief Deputy is one of great confidence vis a' vis the Sheriff. The Chief Deputy is the second in command in the Sheriff's Department, and the Chief Deputy reports only to the Sheriff.

Underwood did not become a member of the County Pension Plan upon being appointed Chief Deputy as the Plan only included merit-appointed deputies. In 1984, Underwood requested that Sheriff Waddell include him in the Pension Plan. The Sheriff contacted the Plan's actuary regarding this, and after the Sheriff Department's legal counsel rendered an opinion that the Chief Deputy could participate in the Plan, Underwood became a member of the Plan.

In June of 1988, Underwood attended the Indiana Fraternal Order of Police ("FOP") conference, along with approximately 400 other FOP members. Underwood and three or four other delegates from his local Lodge attended the conference together. During the conference, a motion was made, seconded, and passed to oppose Proposition 3 on the state ballot. Proposition 3 would have given certain county office holders the option to hold office for more than two terms. If passed, Proposition 3 would have allowed Sheriff Waddell to run for a third term in the fall of 1988.

Underwood personally took no actions to oppose Proposition 3. He "probably communicated" his opposition to Proposition 3 to Sheriff Waddell at one time in the summer of 1988. The subject arose in the context of a conversation in which Waddell stated that if the Proposition were passed he might consider running for another term. Other than discussing Proposition 3 with Waddell on this one occasion, Underwood did not voice his opposition to the Proposition to any other members of the Sheriff's Department after the conference.

In October of 1988, Sheriff Waddell asked Underwood to resign, at least in part because of a belief that Underwood was going to actively oppose Proposition 3. Underwood declined the offer to resign, and told Waddell that he "was not openly campaigning for Proposition 3 to be turned down" as it "was not an issue that Underwood was even concerned with." Several days later Waddell telephoned Underwood at home and stated that he had changed his mind about asking for his resignation.

After this incident in October of 1988, Underwood regained confidence in Sheriff Waddell, their relationship returned to normal, and their friendship seemed "pretty solid." However, on May 16, 1989, Waddell terminated Underwood's employment effective immediately. Waddell told Underwood that "things weren't working out," and asked him to resign. Underwood stated that because "you hired me you're going to have to fire me because I don't feel like I should resign." Sheriff Waddell then terminated Underwood.

On June 16, 1989, Underwood filed this lawsuit against Roy Waddell, individually and as Sheriff of Hendricks County. Underwood bases his action on 42 U.S.C. § 1983, and alleges in Count One of his Complaint that Waddell violated his rights under the Fifth and Fourteenth Amendments by terminating him without due process. In Count Two, Underwood alleges that his discharge was in retaliation for his efforts to defeat Proposition 3, and that his First Amendment free speech rights were thus violated. In both Counts, plaintiff seeks reinstatement, compensatory damages, punitive damages, costs, and attorney's fees.

Defendant previously moved to dismiss, and in an Order dated January 26, 1990, this Court granted in part and denied in part the motion. The Court ruled that Waddell was entitled to qualified immunity on the due process claim, but that Underwood had, on the basis of his allegations in the Complaint, stated a claim under the First Amendment. The Court deferred ruling on the property interest question of the due process claim because the issue in this case is one of state law that has not been addressed by any court.

At this juncture, however, the issues are more clearly framed and there is no reason to delay ruling on these matters. This is particularly true in this instance because the property interest issue presents a question of law, and the facts surrounding this issue are not in dispute. See Colburn v. Trustees of Indiana University, 739 F.Supp. 1268, 1290 (S.D.Ind.1990) (where interpretation of statute is only question in property interest issue, it is question of law).2

II. Summary Judgment Standards:

Rule 56(c) provides that summary judgment "shall be rendered forthwith if the ... record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Rule 56(e) further requires that when a motion for summary judgment is made and properly supported, the non-movant cannot rest upon the mere allegations of his pleadings but must set forth specific facts showing that there is a genuine issue for trial.

Since the Supreme Court's trilogy of decisions on summary judgment, see Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), it is clear that the mandatory aspects of Rule 56 must be followed. Decisions of the Seventh Circuit reflect this change in attitude as well. See, e.g., Herman v. City of Chicago, 870 F.2d 400, 404 (7th Cir.1989); Spellman v. Commissioner, 845 F.2d 148, 152 (7th Cir.1988); Collins v. Associated Pathologists, Ltd., 844 F.2d 473 (7th Cir.1988).

With these standards at hand, the Court will address the substantive questions raised.

III. Discussion:

Plaintiff did not have a property interest in his appointed position as Chief Deputy:

Underwood asserts that he had a protected property interest in his position as Chief Deputy, and that as a result his termination without notice or opportunity to be heard violated his due process rights. As is seen below, resolution of this issue is purely a matter of statutory construction, but one that requires extensive discussion.

"Ever since Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1976), the basic criteria for the recognition of a property interest have been well established." Thornton v. Barnes, 890 F.2d 1380, 1386 (7th Cir.1989). "Property interests are not created by the Constitution but are `defined by existing rules or understandings that stem from an independent source such as state law' and arise only where the plaintiff demonstrates a `legitimate claim of entitlement.'" Polenz v. Parrott, 883 F.2d 551, 555 (7th Cir.1989) (quoting Board of Regents v. Roth, 408 U.S. at 577, 92 S.Ct. at 2709). "Therefore, property interests in employment may be created by express or implied contracts, municipal ordinances, or state laws —including those `rules or understandings that secure benefits and that support claims of entitlement to those benefits.'" Thornton, 890 F.2d at 1386 (quoting Farmer v. Lane, 864 F.2d 473, 478 (7th Cir.1988)).

The state law or ordinance relied upon, however, must provide more than procedure, for there "is neither a `liberty' nor a `property interest' in procedures themselves...." Fleury v. Clayton, 847 F.2d 1229, 1231 (7th Cir.1988). As the Seventh Circuit has written, "In order to give rise to a constitutionally-protected property interest, a statute or ordinance must go beyond mere procedural guarantees to provide some substantive criteria limiting the state's discretion — as can be found, for example, in a requirement that employees be fired only `for cause.'" Cain v. Larson, 879 F.2d 1424, 1426 (7th Cir.1989). "If a statute or regulation merely delimits what procedures must be followed before an employee is fired, then it does not contain the requisite substantive procedure." Id.

In this case, Underwood bases his claim to a property interest on a provision of the Indiana Code governing Sheriffs' departments. Specifically, Underwood relies upon Ind.Code § 36-8-10-11, which provides that a sheriff may terminate a county police officer for cause after certain procedural steps are followed. Section 11 of this chapter reads as follows:

(a) The sheriff may dismiss, demote, or temporarily suspend a county police officer for cause after preferring charges in writing and after a fair public hearing before the merit board, which is reviewable in the circuit court. A notice of the charges and hearing must be delivered by certified mail to the officer to be disciplined. The officer may be

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