Opinion
Civil Action No. 1:99CV186-B-D
August 17, 2000
MEMORANDUM OPINION
This cause is before the court upon the defendants' motion for summary judgment. Upon due consideration of the parties' memoranda and exhibits, the court is ready to rule.
FACTS
The plaintiff, Roy Shelton Sparks, originally began his employment with the City of Booneville, Mississippi ("City"), in August 1993. See plaintiff's memorandum in opposition to defendant's motion for summary judgment, p1; plaintiff's deposition, p. 26. At that time he was employed by the City's waste water treatment facility. Id. He held other positions while within the City's employ, however, in August 1995 the plaintiff was transferred to the City's fire department and began his employment as a fireman. See plaintiff's memorandum in opposition to defendant's motion for summary judgment, p2; plaintiff's deposition, p. 28. He then began the process of becoming certified as a fire fighter under the requirements of the State of Mississippi and attended the Mississippi State Fire Academy. See plaintiff's deposition, p. 30. Although the plaintiff initially failed the physical requirements of the Mississippi State Fire Academy, he received a one year extension of time and was able to pass the requirements in January 1997. See defendants' memorandum brief in support of their motion for summary judgment, p. 2; plaintiff's deposition, p31.
The plaintiff obtained his certification from the state fire academy on February 14, 1997. See plaintiff's memorandum in opposition to defendant's motion for summary judgment, p1; Certification form attached as Exhibit 2 to plaintiff's memorandum in opposition to defendant's motion for summary judgment. He then attempted, unsuccessfully, to complete the state mandated minimum standards certification examination on at least four occasions before his successful completion of the exam in December 1997. See defendants' memorandum brief in support of their motion for summary judgment, p. 2; plaintiff's deposition, p34.
The court notes that the plaintiff was transferred from the City's fire department in June or July 1997 and worked for the City's gas and water department as well as becoming a member of the Jumpertown volunteer fire department until December 1997. After passing his minimum standards certification exam in December 1997 he resumed his position with the City's fire department. Plaintiff's deposition, pp. 36-37.
On May 19, 1998, the plaintiff had asked another fire department employee, Chris Lindley, to work for him. See plaintiff's memorandum in opposition to defendant's motion for summary judgment, p. 2; plaintiff's deposition, p. 18-19. Although not on duty, the plaintiff went to the fire station about 11:00 a.m. to tell Lindley, that he would be in to work and would relieve Lindley after he (the plaintiff) went to Baldwyn. Id.; plaintiff's deposition, p. 18-21. Lindley asked the plaintiff if he could ride with him to Baldwyn in order to pick up his truck which was parked some distance away at another fire station. Id. The plaintiff agreed and the two left the fire station to go first to Baldwyn and then to get Lindley's truck. See plaintiff's deposition p. 21. Upon leaving Baldwyn, the plaintiff stopped at a convenience store and purchased a beer. Id.; plaintiff's memorandum in opposition to defendant's motion for summary judgment, p. 2. As he was leaving the store, he met his brother, a deputy sheriff, who took the beer from him. Id.
When he was initially confronted by the fire chief, William Cook, regarding the events of May 19, 1998, the plaintiff denied purchasing the beer. See plaintiff's memorandum in opposition to defendant's motion for summary judgment, p. 2; plaintiff's deposition, p. 22. However, prior to the meeting of the City of Booneville's Board of Aldermen on June 2, 1998, the plaintiff admitted that he did in fact purchase the beer. See plaintiff's memorandum in opposition to defendant's motion for summary judgment, p. 3; plaintiff's deposition, p. 23; defendants' memorandum brief in support of their motion for summary judgment, p. 3. After such admission, the plaintiff claims that Chief Cook informed him that if he went into a rehabilitation program and stayed for three (3) straight months that the City would rehire him to his position with the fire department. See plaintiff's memorandum in opposition to defendant's motion for summary judgment, p. 3; plaintiff's deposition, p. 44. According to the plaintiff, based on this agreement with Chief Cook, the plaintiff went before the Board of Aldermen, apologized for the incidents in Baldwyn, and resigned his position with the fire department. Id. The plaintiff had retained counsel, Mr. Ronald Michael, who was present at the board meeting and requested that the plaintiff be allowed to resign rather than being terminated. See plaintiff's memorandum in opposition to defendant's motion for summary judgment, p. 3; plaintiff's deposition, p. 46. After the board went into an executive secession and upon their return to the normal meeting they agreed to allow the plaintiff to resign. See plaintiff's memorandum in opposition to defendant's motion for summary judgment, p. 3; plaintiff's deposition, p. 47. The minutes of the June 2, 1998 Board of Aldermen meeting reflects the plaintiff's resignation as follows:
The next order of business was a report by the mayor that a personnel matter had arisen. A motion was made by David Bolen, seconded by Joe Eaton and unanimously adopted to go into closed session and discuss the necessity of going into an executive session to discuss a personnel matter. The mayor came back into open session and announced that they had determined that it was necessary to go into executive session regarding said matter. A motion was made by Wayne Michael, seconded by Mitch Barrett and unanimously adopted to go into executive session regarding said matter. A discussion was held in executive session after which a motion was made by Bobby Goddard, seconded by Mitch Barrett and unanimously adopted to return to open session.
A motion was made by Alderman Eaton and seconded by Alderman Bolen to accept the oral resignation of Roy Sparks as presented in the open meeting. Those voting aye were Joe Eaton, Mitch Barrett and David Bolen. Alderman Bobby Goddard and Alderman Wayne Michael abstained from the vote.
See Minutes of the Meeting of the Mayor and Board of Aldermen of the City of Booneville, June 2, 1998, attached as Exhibit H to the defendants' motion for summary judgment.
Within a few months a position became open and the plaintiff sought re-employment with the City's fire department. See plaintiff's deposition, p. 55; defendants' memorandum brief in support of their motion for summary judgment, p. 3. Chief Cook stated that he refused to recommend the plaintiff for rehiring based on the circumstances surrounding his resignation as well as the plaintiff's poor qualifications and past job performance. See defendants' memorandum brief in support of their motion for summary judgment, p. 3; affidavit of Chief William Boyd Cook attached as Exhibit F to defendants' motion for summary judgment; affidavit of Mayor Wade Lambert attached as Exhibit G to defendants' motion for summary judgment. The plaintiff has stated that Chief Cook told him that the reason he was not being rehired was because he had brought his attorney, Mr. Michael, to the board meeting and that he had not appreciated what Mr. Michael said at the meeting. See plaintiff's memorandum in opposition to defendant's motion for summary judgment, p. 6; plaintiff's deposition, p. 64. The plaintiff was not rehired and subsequently filed an EEOC charge concerning the City's refusal to hire him. See defendants' memorandum brief in support of their motion for summary judgment, p. 3-4. Thereafter, the plaintiff commenced the instant action requesting damages and injunctive relief and alleging violations of 42 U.S.C. § 1983, constitutional violations including violation of the plaintiff's First Amendment right of association and that he was discriminated against and was not rehired due to a perceived disability under the Americans with Disabilities Act, and that the City had breached its oral contract to rehire him. See plaintiff's First Amended Complaint. The plaintiff has conceded his claim under the ADA. See plaintiff's memorandum in opposition to defendant's motion for summary judgment, p. 1. The defendants' have moved for summary judgment as to all remaining claims.
LAW
On a motion for summary judgment, the movant has the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L.Ed.2d 265, 275 (1986) ("the burden on the moving party may be discharged by `showing' . . . that there is an absence of evidence to support the non-moving party's case"). Under Rule 56(e) of the Federal Rules of Civil Procedure, the burden shifts to the non-movant to "go beyond the pleadings and by . . . affidavits, or by the `depositions, answers to interrogatories, and admissions on file' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp., 477 U.S. at 324, 91 L.Ed.2d at 274. That burden is not discharged by "mere allegations or denials." Fed.R.Civ.P. 56(e). All legitimate factual inferences must be made in favor of the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L.Ed.2d 202, 216 (1986). Rule 56(c) mandates the entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to a party's case and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322, 91 L.Ed.2d at 273. Before finding that no genuine issue of material fact exists, the court must first be satisfied that no reasonable trier of fact could find for the non-movant. Matsushita Elec. Indus. v. Zenith Radio Cor., 475 U.S. 574, 587, 89 L.Ed.2d 538, 552 (1986).
Title 42 of the United States Code, Section 1983 does not create substantive rights; but rather, it provides a remedy for deprivations of federal constitutional rights. San Jacinto Sav. Loan v. Kacal, 928 F.2d 697, 700 (5th Cir. 1991); Cook v. Board of Supervisors, 806 F. Supp. 610, 613 (N.D.Miss. 1992). By its own terms, § 1983 imposes civil liability only upon persons "who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subject, or cause to be subjected, any citizen. to the deprivation of any rights, privileges or immunities secured by the Constitution and laws. . . ." 42 U.S.C. § 1983. In order to maintain a claim under § 1983, the plaintiff must first establish: 1) that defendants were acting under color of state law, and 2) that while acting under color of state law, the defendants violated plaintiff's rights protected by the United States Constitution or United States laws. McDonald v. Board of Mississippi Levee Commissioners, 646 F. Supp. 449, 462 (N.D.Miss. 1986), aff'd, 832 F.2d 901 (5th Cir. 1987), citing Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed. 420 (1981) (overruled on other grounds in Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)).
The plaintiff asserts that he is entitled to redress pursuant to § 1983 based on defendants' alleged breach of an oral contract under of Mississippi law. Specifically, the plaintiff claims that the defendants violated his due process rights and his First Amendment right of freedom of association when they refused to rehire him pursuant to an alleged oral contract between himself and the City. While violation of a state law alone is not generally cognizable under § 1983, when a state law claim supplies the basis for the constitutional claim, it may be cognizable. Cook v. Board of Supervisors, 806 F. Supp. at 613, citing, Schepp v. Fremont County, Wyo., 685 F. Supp. 1200, 1203, (D.Wyo. 1988), aff'd, 900 F.2d 1448 (10th Cir. 1990). For example, a claim under state law could create a property interest protected by the Fourteenth Amendment due process clause or another Constitutionally protected right. See, e.g., Davis v. Scherer, 468 U.S. 183, 193, 104 S.Ct. 3012, 3018, 82 L.Ed.2d 139 (1984). Thus, the immediate question for the court is whether there exists an alleged oral contract between the plaintiff and defendants which creates a constitutionally protected interest or right, and if so, whether the plaintiff has been deprived of said interest or right.
ORAL CONTRACT CLAIM
In the instant cause, the plaintiff's claims hinge upon his allegation that subsequent to his purchasing an alcoholic beverage on May 19, 1998 but before his resignation on June 2, 1998, the City entered into an oral contract with him whereby the City agreed to accept the plaintiff's resignation (in lieu of the plaintiff's termination) and would rehire the plaintiff upon his completion of a three month rehabilitation program. It is well established that a municipality may act only through its minutes and that any contract with a municipality requires entry on the minutes as the minutes are the only record of the official actions of that municipality. City of Moss Point v. Miller, 608 So.2d 1332, 1337 (Miss. 1992); JLG Concrete Prods. Co. v. City of Grenada, 722 So.2d 1283 (Miss.Ct.App. 1998); see also Holmes County v. Burton Constr. Co., 267 F. 769 (5th Cir. 1920). If the minutes do not reflect what is required, the private party can insist that a correction be entered. Martin v. Newell, 198 Miss. 809, 815, 23 So.2d 796 (1945); JLG Concrete Prods. Co. v. City of Grenada, 722 So.2d at 1287. The minutes of the June 2, 1998 meeting of the City's Mayor and Board of Aldermen does not in any manner reflect a contract, oral or otherwise, between the parties and there is no evidence that the plaintiff took any steps to have a correction entered into the minutes. Nevertheless, the plaintiff argues that the oral contract between himself and the City is valid and enforceable despite its failure to be reflected on the minutes. The plaintiff relies on the testimony of Board of Aldermen member Wayne Michael to establish the existence of the alleged contract. In support of this argument, the plaintiff cites R.C. Construction v. National Office Systems, 622 So.2d 1253, 1255 (Miss. 1993), for the proposition that oral contracts are enforceable in Mississippi. However, the case of R.C. Construction involves two corporations or businesses; it does not involve a municipality. R.C. Construction, 622 So.2d at 1253. The plaintiff also references the case of Putt v. City of Corinth, 579 So.2d 534, 538 (Miss. 1991). While Putt does involve an oral contract between an individual and a municipal body, the oral contract in that cause, unlike the alleged oral contract in the instant matter, was properly evidenced by an entry on the minutes of the meeting of the Utilities Commission of the City of Corinth. Putt v. City of Corinth, 579 So.2d at 535. In Town of Magee v. Mallett, 178 Miss. 629; 174 So. 246 (Miss. 1937), the Mississippi Supreme Court examined the validity of an oral contract between an individual and a municipality and held:
The plaintiff memorandum in opposition to defendant's motion for summary judgment states as follows, "it is clearly established under Mississippi law that oral contracts are recognizable and enforceable. R.C. Construction v. National Office Systems, 622 So.2d 1253 (Miss. 1993), citing Putt v. City of Corinth, 579 So.2d 534, 538 (Miss. 1991)."
The original contract is admitted to have been oral, whereas it should have been entered upon the minutes of the mayor and board of aldermen. Town of Ackerman v. Choctaw County, 157 Miss. 594, 598, 128 So. 757. It seems to be the settled law, however, that a municipality, in the absence of express statute to the contrary, may subsequently ratify a previously unenforceable contract, which it had the power to make, when the work has been done and the benefits thereof received. 3 McQuillan Mun. Corporations (2 Ed.), sec. 1357; 19 R. C. L., p. 1075. And see Independent Paving Co. v. City of Bay St. Louis, (C.C.A.), 74 F.2d 961.
Town of Magee v. Mallett, 174 So. at 247 (Miss. 1937) (emphasis added). Following this rationale, it is clear that an oral contact with a municipality which is not documented upon the official minutes is unenforceable. Id. Nevertheless, such unenforceable contract may be subsequently ratified and made enforceable if (1) the municipality originally had the power to make the contract and (2) the "work has been done and the benefits thereof received." Id. In the instant cause, the plaintiff has failed to show that the City received any such benefits. While there is no dispute as to the enforceability of oral contracts generally, the plaintiff has failed to bring forth evidence of the validity of the alleged oral contract in question. Therefore, the court finds that the plaintiff's claim of the City's breach of an oral contract must be denied.
FIRST AMENDMENT RIGHT OF ASSOCIATION CLAIM
The plaintiff's second claim centers around his retention of Ronald Michael, Esq. to assist him in the matter of his resignation and his dealings with the City regarding the circumstances which gave rise to this cause. The plaintiff claims that he was not rehired by the City because he brought Mr. Michael to the Board of Aldermen meeting and that this failure by the City was a direct violation of the plaintiff's rights under the First Amendment's freedom of association clause. See plaintiff memorandum in opposition to defendant's motion for summary judgment, p. 9.
In Tillman v. City of West Point, 953 F. Supp. 145, 151 (N.D.Miss. 1996), Judge Davidson clearly addressed a situation similar to the matter at hand, stating:
. . . [T]he First Amendment does not contain a "generalized right of `social association.'" Rather, the United States Supreme Court has determined that the First Amendment encompasses two categories of protection in this regard: 1) "intimate association"; and 2) "expressive association." The right of "expressive association" protects the rights of individuals to associate "for the purpose of engaging in those activities protected by the First Amendment — speech, assembly, petition for the redress of grievances, and the exercise of religion." The right of "intimate association," also referred to by some courts as the right of "private association," is an entirely different animal. Its purpose is to protect against unjustified government interference with an individual's right to enter into and maintain certain intimate human relationships, and is protected as an element of personal liberty.
Tillman v. City of West Point, 953 F. Supp. 145, 151 (N.D. MISS. 1996) (citations omitted). It is the right of intimate association which is at issue in the instant cause.
Courts have extended the protections of the First Amendment, and specifically the right of intimate association, to many familial relationships including marriage, the right to bear children, and the right to cohabitation with relatives; however, the protection provided by the First Amendment is not limited solely to familial relationships. Tillman v. City of West Point, 953 F. Supp. at 151, citing, Wallace v. Texas Tech. Univ., 80 F.3d 1042, 1051 (5th Cir. 1996); see Board of Directors of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 544, 107 S.Ct. 1940, 1945, 95 L.Ed.2d 474 (1987); The First Amendment protections also extend to any relationships that "presuppose `deep attachments and commitments to the necessary few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life.'" Tillman, at 151, quoting, Board of Directors of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. at 545, 107 S.Ct. at 1946). This, however, does not include mere acquaintances or friendships that involve little more than occasional contact with one another. Id. The plaintiff argues that the right to hire and consult an attorney is protected by the First Amendment's guarantee of freedom of association. In support of this argument, the plaintiff quotes extensively from a Seventh Circuit case, Denius v. Dunlap, 209 F.3d 944, 953 (7th Cir. 2000), for the proposition that the First Amendment protects an individual's right to consult an attorney on any legal matter. Denius v. Dunlap, 209 F.3d 944, 953-954 (7th Cir. 2000). The plaintiff goes on to cite at least one Fifth Circuit case recognizing a litigant's right to counsel in a civil case under the Fifth Amendment. See Potashnick v. Port City Const. Co., 609 F.2d 1101 (5th Cir. 1980). However, the court is not persuaded by the plaintiff's arguments.
In the instant cause, the plaintiff has alleged his First Amendment rights were violated as the result of his hiring an attorney to represent his interests. The plaintiff has brought forth no evidence that he had any more than a professional relationship or friendship with his attorney Mr. Michael. There is no evidence that his relationship with Mr. Michael was any more than an acquaintance that resulted in the rendering of professional services. This relationship is not protected by the First Amendment. As such, the court need not address whether the City's acceptance of the plaintiff's resignation and subsequent refusal to rehire him was an unconstitutional infringement of his First Amendment right as a public employee.
The defendants are entitled to the entry of a judgment as a matter of law on this claim of the plaintiff. Not only does the evidence before the court show that there was no valid oral contract between the City and the plaintiff; but the lack of such contract equates to lack of any interest which the plaintiff could claim is protected by the Constitution and could then give rise to a claim under 42 U.S.C. § 1983. Further, even if a Constitutionally protected interest did exist, the plaintiff has failed to bring forth evidence sufficient to establish that his relationship between himself and his attorney, Mr. Michael, and therefore, the plaintiff's claim would fall under any First Amendment scrutiny.
DUE PROCESS CLAIMS
The plaintiff next claims that the City violated his due process rights under the Fourteenth Amendment. As stated above, violation of a state law alone is not cognizable under § 1983. Cook v. Board of Supervisors, 806 F. Supp. at 613. A state law claim may supply the basis for the constitutional claim, then it may be cognizable under § 1983. Id. As the court has found that no oral contract existed between the parties. There can be no breach nor any constitutionally protected interest; i.e. a property interest such as re-employment, which would give rise to a due process claim without the alleged oral contract. This being so, the court finds that the plaintiff's claims that the City violated his due process rights must also fail.
CONCLUSION
In conclusion, plaintiff has failed to advance a viable claim under 42 U.S.C. § 1983. His claims under § 1983 stand or fall based upon the existence of the alleged oral contract between the parties. As there is no evidence of such a contract contained on the minutes of the City's Mayor and Board of Aldermen, therefore, the plaintiff's state law claim must fail. Without an underlying claim the plaintiff can prove no set of facts in support of his § 1983 claim against defendants which would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 2 L.Ed.2d 80, 78 S.Ct. 99 (1957); U.S. v. Uvalde Consol. Independent School District, 625 F.2d 547, 549 (5th Cir. 1980), cert. denied, 451 U.S. 1002, 68 L.Ed.2d 858, 101 S.Ct. 2341 (1981). Therefore, the plaintiff's Constitutional claims must also fail. An order shall issue accordingly.
ORDER
In accordance with the memorandum opinion this day issued, it is ORDERED:
that the defendant's motion for summary judgment is GRANTED; and
that this cause is DISMISSED with prejudice.