Wimer v. Holzapfel
| Decision Date | 27 September 1994 |
| Docket Number | No. 1:93-CV-341.,1:93-CV-341. |
| Parties | Calvin WIMER and Charlotte Wimer, Plaintiffs, v. H.R. HOLZAPFEL, Individually and as Sheriff of Hardin County, Texas, and the County of Hardin, State of Texas, Defendants. |
| Court | U.S. District Court — Eastern District of Texas |
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Rife Kimler, Beaumont, for plaintiffs.
John W. Newton, III, Orgain Bell & Tucker, Beaumont, for defendants.
Plaintiffs, the Wimers, have brought this action alleging Defendants, Sheriff Holzapfel (Holzapfel) and Hardin County, Texas: (1) conspired to deprive them of property, liberty, free speech and free association in violation of 42 U.S.C. § 1983, 28 U.S.C. § 1343 and the First and Fourteenth Amendments of the United States Constitution; and (2) violated sections 1 and 2 of the Sherman Antitrust Act (15 U.S.C. §§ 1, 2). Defendants have moved for summary judgment contending that the law and facts do not create a cause of action and, in the alternative, that Holzapfel is entitled to qualified immunity.
The circumstances surrounding this case are, not surprisingly, the subject of some disagreement. The parties do, however, seem to agree on the basic facts.
The Plaintiffs are the sole proprietors of a business known as Wimer's Auto & Truck Service (Wimer's Auto) in Kountze, Texas. The company provides automobile repair services and also provides a towing and wrecking service for the area surrounding Kountze. Prior to the events which led to this suit, Wimer's Auto was on the rotational list for wrecker service maintained by the Hardin County Sheriff's Department.1 The Sheriff's department used the list to determine which wrecker service would be employed when, pursuant to Texas state law, an illegally parked or disabled automobile had to be towed.2
In addition to running Wimer's Auto, Mr. Wimer is a man of political aspirations. He ran for, and on May 1, 1993, he was elected to, a seat on the Kountze city council. His opponent was Royce Overstreet. The father of Mr. Overstreet is alleged to be a good friend of Sheriff Holzapfel.
On May 3, 1993,3 Sheriff Holzapfel removed Wimer's Auto from the Hardin County rotational list for wrecking and towing services. Mr. Wimer contends that this removal is a none too subtle retaliation for the defeat that the Sheriff's friend, Mr. Overstreet, suffered at the hands of Plaintiff. The Sheriff claims that Mr. Wimer was only removed from the list due to concerns that there might be a conflict of interest if someone in Mr. Wimer's position was allowed to continue to provide services to the city.4
Plaintiff now claims that removing him from the list was an improper retaliation for the exercise of his First Amendment rights.
It is well-settled that a motion for summary judgment can be granted only if the matters considered by the court clearly demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); FED.R.CIV.P. 56(c). It is equally well-settled that the burden of proving that "no genuine issue of material fact exists," rests with the party moving for summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 321, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Once the moving party meets this threshold, the burden shifts to the nonmoving party to demonstrate with significant probative evidence that there exists a genuine issue of fact to be tried. Kansa Reinsurance v. Congressional Mort. Corp., 20 F.3d 1362, 1371 (5th Cir.1994); Conkling v. Turner, 18 F.3d 1285, 1295 (5th Cir.1994). This requires that the nonmoving party produce more than some "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Only evidence, not unsworn pleadings, memoranda or the like, will satisfy this burden. Larry v. White, 929 F.2d 206, 211 n. 12 (5th Cir.1991). When a rational jury, looking at the record as a whole, could not find for the nonmoving party, no issue of material fact exists and summary judgment is proper. Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969) (en banc).
This Court is convinced that Defendant's Motion for Summary Judgment is proper with respect to Plaintiff's claims of antitrust violations.5
"It is well settled that summary judgment is appropriate in antitrust cases where a plaintiff is unable to produce `significant probative evidence' to support the bare allegations in its complaint." Cranefill v. Scott & Fetzer Co., 773 F.Supp. 943 (E.D.Tex.1991) (citing First National Bank of Arizona v. Cities Services Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968)). Plaintiffs "may not rest upon the mere allegations or denials of their pleading, but ... must set forth specific facts showing that there is a general issue for trial." Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting First National Bank of Arizona v. Cities Services Co., 391 U.S. 253, 288-289, 88 S.Ct. 1575, 1592-93, 20 L.Ed.2d 569 (1968)).
To prevail under § 1 of the Sherman Act, Plaintiffs must show that a combination or conspiracy existed between two or more entities. Fisher v. City of Berkeley, 475 U.S. 260, 266, 106 S.Ct. 1045, 1049, 89 L.Ed.2d 206 (1986). An entity and its employees cannot, merely by acting together, constitute a "conspiracy" within the meaning of § 1 of the Sherman Act. Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 769, 104 S.Ct. 2731, 2740, 81 L.Ed.2d 628 (1984). Plaintiffs must also show that there is, as a result of Defendant's activities, some anti-competitive effect in the relevant market. Kiepfer v. Beller, 944 F.2d 1213, 1221 (5th Cir.1991); Daniels v. All Steel Equip., Inc., 590 F.2d 111, 113 (5th Cir.1979).
Plaintiff fails to offer any "significant probative evidence" that the Hardin County Sheriffs office conspired with anyone or that the actions of the Sheriff's office had any anti-competitive effect on the relevant market. In fact, Plaintiff even fails to make these specific allegations in its complaint. So even if this court could accept allegations made in a pleading as support for Plaintiff's Motion to Deny Summary Judgment, Defendant's motion should still be granted.
This Court is equally skeptical of Plaintiff's claim that he has been denied property or liberty in violation of the Due Process Clause.
In order to succeed on a claim of deprivation of procedural due process, a plaintiff must establish that state action deprived him of a protected property or liberty interest. See e.g. Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 901, 47 L.Ed.2d 18 (1976). To have a property interest in a public benefit, a plaintiff Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). Such property interests are "created and their dimensions are defined by existing rules or understandings that stem from an independent source of state law." Id. Plaintiff will establish a property interest if he can demonstrate: (1) that state law expressly or impliedly created an expectation of continued presence on the Hardin County rotational list; or (2) that there was a mutual understanding that he would not be removed from the list absent a bona fide reason.
Texas law does not expressly create an entitlement for access to, or presence on, the Hardin County rotational list. The relevant statute merely empowers local authorities to tow abandoned or disabled vehicles. TEX.REV.CIV.STAT.ANN. art 6701d § 94 (Vernon's Supp.1994). See note 2, supra. It does not provide for the creation or administration of a list. Sheriff Holzapfel could have used the same towing service every time. He did not have to create a list. Furthermore, once the list was created, he was under no duty to employ a rotational system. In situations where the existence and administration of a towing list is wholly within the discretion of a public official, other courts have held that no property interest is created. White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1062 (2d Cir.1993); Contra Pritchett v. Alford, 973 F.2d 307, 317 (4th Cir.1992) () and Abercrombie v. City of Catoosa, Okl., 896 F.2d 1228, 1232 (10th Cir.1990) (same).
Texas law also fails to provide Plaintiff with an implied property right. Under Texas law, a contract for services that makes no specific provision for duration is presumed to be terminable at will. East Line & Red River R.R. Co. v. Scott, 72 Tex. 70, 75, 10 S.W. 99, 102 (1888); Winters v. Houston Chronicle Pub. Co., 795 S.W.2d 723 (Tex.1990). Employment that state law permits to be terminated at any time is not a property right that is protected by the Due Process Clause. See e.g. Bishop v. Wood, 426 U.S. 341, 345-347, 96 S.Ct. 2074, 2078-79, 48 L.Ed.2d 684 (1976) () and Moulton v. City of Beaumont, 991 F.2d 227, 230 (5th Cir.1993).
Plaintiff admits that he had no contract with the city for towing services. The sheriff was free to remove Plaintiff from the list at anytime. Under Texas law, this is at best at-will employment. As such, it did not create a property right.
Finally, we turn to the issue of whether Plaintiffs and Hardin County had a mutual...
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