Opinion
Case No. 2:03CV109DAK
May 5, 2003
MEMORANDUM DECISION AND ORDER DISMISSING FEDERAL CLAIMS AND REMANDING STATE LAW CLAIMS
This matter is before the court on Defendants' Motion to Dismiss. A hearing on the motion was held on May 1, 2003. At the hearing, Defendants were represented by Peter Stirba, and Plaintiff was represented by Jared L. Bramwell. The court took the matter under advisement. The court has considered carefully the memoranda and other materials submitted by the parties, as well as the law and facts relating to the motion. Now being fully advised, the court renders the following Memorandum Decision and Order.
Defendants City of Pleasant Grove, Edward T. Sanderson, Carol Harmer, Betty Memmott, Darold McDade, Jim Danklef, and Tina Peterson move to dismiss Plaintiff's Section 1983 civil rights action and slander cause of action. Defendants also ask this court to decline to exercise supplemental jurisdiction over the remaining state law claims and dismiss those claims without prejudice for them to be raised in state court.
BACKGROUND
Plaintiff was a member of Pleasant Grove's Planning Commission. He was appointed by the Mayor and City Council for a four-year term in January 1999. His position on the Planning Commission is voluntary and uncompensated. In addition to suing the City, Plaintiff has also named the Mayor, members of the City Council, and the City Attorney.
Beginning in at least early 2001, Bramwell's admitted outspokenness led to disagreements with the Defendants. At a City Council meeting on May 1, 2001, an attorney for developer Peny Homes, Inc., publicly complained about Bramwell and the City Council unanimously voted to bar Bramwell from any future involvement in the General Plan amendment process and Perry Homes' zoning issue. Defendant Lori Peterson, the City Attorney, called Bramwell and stated the action taken was improper and they would delete the vote from the record. The minutes to the meeting were altered so as not to reflect the vote.
The Mayor and City Council asked Bramwell to resign from the Planning Commission in the Spring of 2001. The Mayor and council members alleged that Bramwell did not handle himself properly with members of the public, people appearing before the Planning Commission, and members of the city's staff Allegedly, one developer threatened to sue the City, and the Mayor and City Attorney told Bramwell that if he did not resign, the City would not cover his defense costs but that if he did resign, they would cover him for anything that arose. Bramwell decided not to resign, and the Mayor and City Council began proceedings to have him removed from the Planning Commission.
The City's rules and ordinances provide that members of the Planning Commission may be removed for cause by a majority vote of the City Council. The City gave Bramwell a letter stating its reasons for removing him from the Planning Commission. The reasons focused mainly on Bramwell's attitude and included one allegedly improper expense submitted for payment by Bramwell. Bramwell responded to the letter and asked for a hearing. The City Council held a hearing on July 25, 2001. At the hearing, the City Council voted unanimously to keep Bramwell on the Planning Commission. The City Council, however, did not agree to pay Bramwell for the expenses he had incurred.
Bramwell remained on the Planning Commission. In October 2001, the Mayor commented to newspapers that the cause of certain lawsuits the City was involved in was Bramwell and his harsh manner. There are no further allegations regarding the period between October 2001 and June 2002. However, on June 27, 2002, Bramwell resigned from the Planning Commission, claiming that the Defendants' actions made it unbearable for him to carry out his duties.
Bramwell alleges a 42 U.S.C. § 1983 due process claim, a Section 1983 conspiracy claim, and a slander claim against all of the Defendants and breach of contract and unjust enrichment claims against the City.
DISCUSSION
I. Civil Rights Claims
Defendants seeks dismissal of Bramwell's Section 1983 civil rights claims because he has not stated a due process claim against any of the individual Defendants, the City cannot be liable if there is no underlying violation of any of its officers, and he has not stated a conspiracy claim because he has not stated an underlying violation of his constitutional rights.
A. Claims against Individual Defendants
Bramwell claims that the individual Defendants deprived him of due process by: (1) failing to reimburse him for the reasonable expenses incurred in carrying out his Planning Commission responsibilities; (2) representing to him that he was no longer covered by Pleasant Grove's insurance; (3) attempting to remove him from his position by making false allegations about his performance; (4) attempting to remove him outside the disciplinary channels provided for by city ordinances and Planning Commission bylaws; and (5) by falsifying and altering the official public record of public meetings and hearings.
Procedural due process ensures that a governmental entity will not deprive a party of property without engaging fair procedures, while substantive due process ensures that the state will not deprive a party of property arbitrarily. The Tenth Circuit has generally held that to prevail on either a procedural or substantive due process claim, a plaintiff must first establish that a defendant's actions deprived plaintiff of a protectible property interest. Weathers v. West Yuma County Sch. Dist. R-J-1, 530 F.2d 1335, 1340-42 (10th Cir. 1976).
The only exception to this general rule is that even if a property interest is absent, "a procedural due process hearing may be necessary if a liberty interest is implicated." Rich v. Secretary of the Army, 735 F.2d 1220, 1226 (10th Cir. 1984). In the employment setting, a liberty interest encompasses two interests: (1) the protection of the employee's good name, reputation, honor, and integrity, and (2) his freedom to take advantage of other employment opportunities. Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). "Injury to reputation alone, however, does not trigger due process protection unless entangled with the lose of some more tangible interest such as employment." Unified School Dist. No. 457 v. Phifer, 729 F. Supp. 1298, 1304 (D. Kan. 1990).
1) Attempts to Remove Bramwell from Planning Commission
Defendants argue that Bramwell does not have a property interest in his position on the Planning Commission because he did not receive any monetary compensation. Bramwell argues that, even though he did not receive compensation, he did have a property interest in his position on the Planning Commission because there are other benefits tied to his position and the city ordinances specifically state that a planning commissioner can only be removed during his term for cause.
In Versarge v. Township of Clinton, N.J., 984 F.2d 1359, 1370 (3d Cir. 1993), the court found that a volunteer fire fighter did not have a property interest because he did not receive monetary compensation for his services and, therefore, could not bring a due process claim against a town and its fire chief after being dismissed from his position. The court noted that the plaintiff's claimed benefits associated with the position, such as training, workers' compensation, and access to the firehouse social area, were de minimis. Id.
In Thornton v. Barnes, 890 F.2d 1380 (7th Cir. 1989), the court stated that "the matter of compensation, as well as the time demands of a position, are relevant considerations when the statutory language leaves unclear whether the legislature intended to establish a `legitimate claim of entitlement' to an office." Id. at 1388 (citation omitted). The court in Thornton noted that "there is no case specifically finding a property right in an office for which there is no remuneration. Nor is there a case declining to find a property interest under such circumstances." Id. at 1388 n. 9. Because the case was presented on appeal from a grant of preliminary injunction, the court did not disturb the trial court's finding that the plaintiff had a substantial likelihood of demonstrating a property interest. Id. at 1388. The court indicated it was not deciding "definitively whether a property right exists." Id. at 1388 n. 12.
Bramwell has not demonstrated that his position on the Planning Commission contained the type of benefits necessary for this court to find that he had a property interest in his position. The fact that he was reimbursed for costs associated with his position is analogous to the training and workers compensation benefits that were found insufficient in Versarge. The benefit is inextricably tied to the position. Similarly, the powers associated with the position are inextricably tied to the position. Further, the more nebulous concepts of honor and public esteem are not considered property. Thornton, 890 F.2d at 1392 (Easterbrook, J., concurring) (citing Paul v. Davis, 424 U.S. 693 (1976)). Therefore, the court concludes that Bramwell did not have a private property interest in his position.
Even if Bramwell had a property interest in his position, his due process claim still fails because defendants never removed Bramwell from his position. The Complaint specifically states that the City Council voted unanimously that there were no grounds for removing Bramwell. Bramwell remained a member of the Planning Commission for 11 months after the July 25, 2001 hearing, and then voluntarily resigned.
In Parker v. Board of Regents of Tulsa Junior College, 981 F.2d 1159, 1161-62 (10th Cir. 1992), the court found that where a plaintiff resigned of her own free will, even though doing so was due to actions of the defendants, she voluntarily relinquished her property interest and was not deprived of her property without due process.
Bramwell asserts that he was constructively discharged. But, he has not stated facts that would demonstrate that he did not have the opportunity to make a free choice. In Lighton v. University of Utah, 209 F.3d 1213, 1222 (10th Cir. 2000), the court stated that "[i]n determining whether a resignation is voluntary or involuntary, we use a `reasonable person test.'" Id. at 1222 (quoting Yearous v. Niobrara County Mem'l Hosp., 128 F.3d 1351, 1356 (10th Cir. 1997), cert. denied, 523 U.S. 1074 (1998)). "The question is not whether working conditions become difficult or unpleasant. Rather, a resignation is only considered involuntary if the working conditions are viewed as so intolerable, a reasonable person would feel compelled to resign." Id. A plaintiff "must show he had `no other choice but to quit.'" Id. (citations omitted). Under the totality of the circumstances, the court looks at whether a plaintiff "1) received some alternative to resignation; 2) understood the nature of his choice; 3) had a reasonable time in which to choose, and 4) was permitted to select the effective date of his resignation." Id.
In this case, Bramwell's resignation occurred eleven months after the City Council held its July 25, 2001 hearing. All of the conduct Bramwell relies upon occurred in 2001. There is no indication that problems continued to occur or that the relationship between the parties in 2002 left Bramwell with no choice but to resign. Therefore, he does not meet the standard for constructive discharge, and his voluntary resignation cannot be considered a deprivation of his due process rights.
Defendants further argue that Bramwell cannot rely on his resignation as a basis for his due process claim because he was given all the due process to which he was entitled. He received notice of the claims against him and a hearing. And, in fact, he prevailed at the hearing. Bramwell argues that he incurred significant costs in protecting his property interest in his position on the Planning Commission and the bad faith attempts by the Defendants to remove him without cause deprived him of procedural due process and was arbitrary.
However, due process protections do not extend to reimbursement of costs an individual incurs in exercising or protecting his due process rights, and Bramwell has failed to cite any authority that would allow or support such reimbursement. Under due process, Bramwell was entitled to notice and a hearing, and he received those procedures. In addition, there is no basis in the Complaint for Bramwell's conclusion that the process was arbitrary. He acknowledges the problems that were occurring and he acknowledges that the City Council considered his arguments and ultimately voted in his favor. Therefore, there is no showing that he was deprived of his substantive due process rights.
2) False Allegations
Bramwell asserts that the allegations asserted against him by Defendants were false and deprived him of a liberty interest in his good name and reputation. Plaintiff argues that Defendants' statements included: (1) Plaintiff abused and demeaned city officials and staff on a regular basis; (2) Plaintiff would have been fired had he been a city employee; (3) Plaintiff illegally submitted an invoice for payment; (4) Plaintiff was like a little child; and (5) Plaintiff lied and was deceitful in his dealings as a person and a Planning Commissioner.
The Tenth Circuit has articulated a four-part test that a plaintiff must satisfy to demonstrate the deprivation of a liberty interest in one's name and reputation:
First, to be actionable, the statements must impugn the good name, reputation, honor or integrity of the employee. Second, the statements must be false. Third, the statements must occur in the course of terminating the employee or must foreclose other employment opportunities. And fourth, the statements must be published.Workman v. Jordan, 32 F.3d 475, 481 (10th Cir. 1994). If all of the above elements are established, the employee's remedy is a name-clearing hearing. Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 526 (10th Cir. 1998).
First, consistent with this court's finding above, the court does not find this analysis applicable to Bramwell because he did not have a property interest in his employment. Second, even if Bramwell had a property interest in his position, the defendants' allegations did not occur in the course of termination or foreclose any employment opportunities for him. Even though there are allegations that the Mayor talked to someone at Bramwell's actual employer, the Complaint states that the employer did not take any action against Bramwell. Bramwell argues that this element should be expanded to include any loss of tangible interest, such as legal expenses, time off work, postage, telephone, mileage, and other costs. However, this court is not aware of any case law to support such an extension. Therefore, BRAMWELL has not met the required elements to state a deprivation of a liberty interest and he was not entitled to a name-clearing hearing.
In any event, Bramwell received a name clearing hearing at the July 25, 2001 hearing, in which he was able to address the Defendants' allegations. In addition, he was successful at that hearing and remained a Planning Commissioner. Therefore, this court concludes that Bramwell has not adequately demonstrated that he was deprived of a liberty interest.
3) Legal Representation
Bramwell argues that he was denied due process because he was told that the City's insurance would not cover him in potential lawsuits unless he resigned and he chose not to resign. Defendants argue that Bramwell did not have a property interest in insurance coverage for his position with the City and, even if he did, there are no allegations that he was actually deprived of this interest.
In order to establish a procedural or substantive due process claim, one must show an actual deprivation of a property interest. Mitchell, 218 F.3d at 1198. Bramwell's Complaint contains no allegations that a lawsuit was ever filed or that he was denied coverage. Therefore, this allegation provides no basis for his due process claim.
4) Reimbursement
Defendants' argue that even if Bramwell had a property interest in being reimbursed for reasonable expenses he incurred while carrying out his duties on the Planning Commission, the amount of the expenses, $394.13, is de minimus and Bramwell was given an opportunity to be heard on this issue at the July 25, 2001 hearing.
"Not all property interest deserve constitutional protection." Dill v. City of Edmund Okla., 155 F.3d 1193, 1207 (10th Cir. 1998). Even if this could be construed as a deprivation of a constitutionally protected property interest, Bramwell was given an opportunity to be heard on his reimbursement claim at the July 25, 2001 hearing. The fact that the City Council denied this claim does not give rise to a due process violation. "The Due Process Clause is not a guarantee against incorrect or ill-advised decisions." Collins v. Harker Heights, 503 U.S. 115, 129 (1992). Therefore, Bramwell was given all the due process to which he was entitled.
Furthermore, this claim is more in the nature of a contractual claim than a constitutional entitlement. "A mere breach of a contractual right is not a deprivation of property without constitutional due process of law." Medina Jiminez v. Almodovar, 650 F.2d 363, 370 (1st Cir. 1981). While Bramwell may have a contract claim against the City for reimbursement, it is not a cognizable constitutional claim against the individual defendants.
5) Alteration of Meeting Minutes
Bramwell has not demonstrated any property interest in meeting minutes. Therefore, any changes made to the minutes do not provide a basis for a due process claim.
Bramwell's civil rights claims against the individual Defendants are, therefore, dismissed.
B. Claims against City
"A municipality may not be held liable where there was no underlying constitutional violation by any of its officers." Hinton v. City of Elwood, Kan., 997 F.2d 774, 782 (10th Cir. 1993). Because Bramwell has failed to plead that the individual Defendants violated his due process rights, his claims against the City fail as well and are dismissed.
C. Section 1983 Conspiracy Claim
"[T]o recover under a § 1983 conspiracy theory, a plaintiff must plead and prove not only a conspiracy, but also an actual deprivation of rights; pleading and proof of one without the other will be insufficient." Dixon v. City of Lawton, Okla., 898 F.2d 1443, 1449 (10th Cir. 1990). Because Bramwell's Complaint does not state a violation of constitutional rights, he has not stated a Section 1983 conspiracy claim. Therefore, his conspiracy claim is dismissed.
II. State Law Claims
Defendants argue that Bramwell's state law claim for slander should be dismissed because he failed to state the claim in his Notice of Claim. Defendants also argue that the court should decline to exercise supplemental jurisdiction over the remaining state law claims and dismiss them without prejudice because there are no longer any federal causes of action.
The court declines to rule on the state law cause of action for slander. The court agrees that it should decline supplemental jurisdiction over the remaining state law claims. This action has just begun and there is no prejudice to the parties. See United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1996); Anglemyer v. Hamilton County Hosp., 58 F.3d 533, 541 (10th Cir. 1995) (supplemental jurisdiction should be retained when "given the nature and extent of the proceedings, judicial economy, convenience, and fairness would be served.") (citation omitted). Because this case was removed to federal court, the case is remanded to the state court in which it was originally brought.
CONCLUSION
Defendants' Motion to Dismiss is GRANTED with respect to the federal civil rights claims. The remaining state law claims in Plaintiff's Complaint are REMANDED to the Fourth Judicial District Court in and for Utah County, State of Utah, Division 7, Civil No. 020405518. Pursuant to 42 U.S.C. § 1447 (c), the clerk of this court shall mail a certified copy of this order and the file in this matter to the clerk of said state court.