Opinion
Case Number: 02-20957-CIV-MORENO
March 19, 2003
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This case involves alleged defamatory statements made to various print and television media outlets by the City of Hialeah Police Department regarding alleged illegal drug use by one of their officers. Plaintiff Wilson Medina brought this suit alleging slander and seeking declaratory relief. Before the Court is Defendant's Motion to Dismiss Amended Complaint and Motion for Summary Judgment (D.E. No. 19), filed on July 12, 2002 . For the reasons stated below, the motion for summary judgment is GRANTED.
I. FACTUAL BACKGROUND
Plaintiff Wilson Medina ("Medina"), a former probationary police officer with the Hialeah Police Department, brought this suit in state court against Defendant City of Hialeah ("City") after Defendant's agents allegedly made public comments implicating Plaintiff in illegal narcotic-related activity. On March 28, 2002, Defendant timely removed the case to this Court, claiming that federal question jurisdiction exists. Plaintiff's motion for remand was denied on June 3, 2002, and subsequently, he filed an Amended Complaint on June 24, 2002.
Medina was terminated by the City of Hialeah on March 1, 2000 based upon information received during a Police Department internal affairs investigation that Medina has used narcotics, sold controlled substances, or otherwise engaged in illegal conduct. Am. Compl. ¶ 5. The source of this information was a fellow probationary officer, Omar Diaz, who was under investigation at the same time. Medina claims he was never questioned during the investigation by either the Police Department or the State Attorney's Office.
Once the City had completed its investigation, but before his termination, agents of the City made public statements regarding details about Medina's alleged actions to both the print and broadcast media. In these statements, the City implicated Medina in illegal drug activities and engaged in criminal conduct. As a result, Medina claims that his reputation and good name have been adversely affected.
Medina was one of a group of City of Hialeah police officers who were implicated in what the media termed the "Ecstasy Bust" in February 2000.
Once he was terminated, Medina successfully petitioned for a name clearing hearing. At the hearing he made a statement in which he proclaimed his innocence and claimed that the Internal Affairs report ("IA Report") contains a number of unsubstantiated allegations and fails to mention that he was not arrested or charged with any criminal offense.
Medina claims that his attempts to obtain employment with other entities have been unsuccessful, because in response to each of the entities' inquiries, the City has provided a copy of the IA Report that implicated Medina. Additionally, he asserts that the City does not attach the details of the name-clearing hearing in response to third-party requests.
Medina has sought employment as a police officer with the police departments of Metro Dade, the City of Miami, and Surfside.
As of August 13, 2002, he has been unable to secure employment in his chosen profession of law enforcement.
II. LEGAL STANDARD
Summary judgment is authorized when there is no genuine issue of material fact. Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Adickes v, S. H. Kress Co., 398 U.S. 144, 157 (1970). The party opposing the motion for summary judgment may not simply rest upon mere allegations or denials of the pleadings; the non-moving party must establish the essential elements of its case on which it will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). The nonmovant must present more than a scintilla of evidence in support of the nonmovant's position. A jury must be able reasonably to find for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986).
III. ANALYSIS
Plaintiff's complaint contains two causes of action. Count I seeks damages and injunctive relief for slander. Count II asks the Court for declaratory relief as to the rights and obligations of the parties with regard to allegations of Plaintiff's criminal conduct. He requests declaratory relief declaring him to be innocent of the allegations against him and an injunction against the City from disseminating information to third parties indicating that he was terminated because he engaged in illegal conduct or committed a crime.
A. Defamation
Count I of Medina's Amended Complaint concerns a claim for libel and slander brought against a municipality. There are two separate statements that Plaintiff argues give rise to defamation. First, the dissemination of information to the print and broadcast media at the time of Medina's termination. Second, the dissemination of the IA Report which concludes that Medina used the drug Ecstasy to Medina's potential employers and other individuals who make inquiries. Medina claims that both of these actions constitute defamation, and falsely suggest that Medina has committed a crime and tends to injure him in his trade and profession. Defendants contend that no actionable slander occurred as a matter of law because comments about the conduct of police officers are actionable only upon a showing of actual malice, and municipalities are immune from vicarious liability for the malicious acts of its agents, employees, officers, and for comments made by the Police Chief concerning a police officer's lack of fitness for duty.
Under state tort law, a police officer is deemed a public figure as a matter of law. Smith v. Russell, 456 So.2d 462 (Fla. 1984). As such, criticism of him relating to his official conduct is actionable only upon a showing of "actual malice" under New York Times v. Sullivan, 376 U.S. 254 (1964). Moreover, publication of true statements are defamatory only if published with actual malice. Axelrod v. Califano, 357 So.2d 1048, 1050 (Fla. 1st DCA 1978).
By statute, a municipal corporation is not liable for the malicious acts or omissions of officers, employees, or agents. Fla. Stat. § 768.28(9). Moreover, high-ranking police officers, city officials, and authorized agents (and the municipalities they represent) are immune from suit for defamation for dissemination of information to media outlets concerning matters of serious public concern such as a police officer's alleged wrongful conduct or his lack of fitness for duty. See City of Miami v. Wardlow, 403 So.2d 414, 415-16 (Fla. 1981).
Synthesizing this precedent, the Court arrives at a strong presumption of immunity for the City in this case. Medina concedes that absolute immunity extends to publications made by executive officials of government acting in connection with the performance of the duties and responsibilities of their office. McNayr v. Kelly, 184 So. 428 (Fla. 1966). He claims, however, that his claims are being brought against the City and not against the representatives of the City. This distinction is artificial. If a city official has absolute immunity against claims for defamation, then the city cannot be liable for defamation where the liability against the City is premised on respondeat superior. See Saxton v. Knowles, 185 So.2d 194 (Fla 4th DCA 1966). Liability against the City is clearly premised on an agency relationship, as Medina is suing the City for its agents' alleged defamation.
Similarly, Medina's attempts to characterize the City's comments as pertaining to off-duty conduct also fail, considering that during one of the incidents, he was allegedly in uniform. Martinez Aff. at 9. Moreover, as Departmental rules make clear, a police officer is not transformed into a private citizen once the moment he removes his uniform. Def. Ex. A. Even when off-duty officers must not engage in conduct unbecoming an officer. Thus, even though some of the statements related to Medina's nocturnal activities, the Chiefs statements were clearly regarding a matter of public concern, and bore directly on the fitness of Medina to serve as a sworn law enforcement officer. Chief. Aff. ¶ 6.
Finally, Plaintiff does provide any admissible, competent evidence to conclude that City officials acted with any state of mind that would be actionable under the actual malice standard. While it is true that City officials, such as the Police Chief made statements that stigmatized Medina to the media, Plaintiff has not produced any evidence to show that the City officials knew that they were false. The Amended Complaint predicates liability on the City's negligence in making the statements, and contains no reference to criticism of him that might be based on actual malice. Am. Comp. ¶ 16 (emphasis added). Indeed, he shies away from terming the statements false. Resp. at 7 n. 5. Besides a chain of conclusory statements, Plaintiff also fails to dispute the facts contained in the IA Report with any admissible, competent evidence. As this Court finds that Plaintiff cannot provide sufficient, competent evidence to overcome the City's privilege, the defamation claim against the City is DISMISSED.
B. Declaratory Judgment
Plaintiff's Amended Complaint reveals that declaratory relief is necessary, since "he has no adequate remedy at law" and "no judicial officer has ever substantiated the veracity of the City's allegations either at a probable cause hearing or at a full evidentiary hearing." Am. Compl. ¶ 25. Medina argues that he has committed no crime, he did not use or sell narcotics or drugs, and he has not engaged in any illegal conduct at any time either before or during his employment with the City. Am. Compl. ¶ 22.
Defendant contends that no grounds exist for declaratory relief where the primary objective of the action is to litigate the veracity of allegations contained in public records and no source of doubt as to rights, privileges, or obligations can be established where state law mandates access to public records. In its motion for summary judgment, the City claims that declaratory relief proceedings are not available where the primary object of the suit is to try disputed questions of fact as the determinative issues.
In his response, Plaintiff "concedes that he has miscast his claim, and that declaratory relief does not lie." Pl. Resp. 7. This is because Internal Affairs records of suspected police misconduct become public records at the conclusion of the investigation. FLA. STAT. § 112.533. Moreover, the City must furnish these records upon request. The City of Hialeah, in accordance with Florida Public Records Act, is directed to supply the Internal Affairs report when contacted by other parties, even if the information is incorrect or inaccurate. FLA. STAT. § 119.07 (1)(a).
1. The Name-Clearing Hearing
Nevertheless, Medina argues that he is still entitled to relief. He contends that the name clearing hearing that he received from the City "was not transcribed or recorded in any manner," and thus "the sufficiency of the employee name clearing hearing" is at issue. Medina Aff. at 4. Furthermore, he argues that all relevant information must be disclosed in response to a third-party inquiry — in this case, information tending to suggest that the City's investigation was flawed and that he is innocent of the alleged Ecstasy use. Although this due process argument was not included in Plaintiff's Amended Complaint, the Court finds that it warrants further discussion.
The crux of Medina's recently discovered name-clearing claim is whether Plaintiff was entitled under procedural due process to a sufficient "name clearing" hearing to challenge or question findings made in the IA Report. Medina argues that the hearing he received was insufficient. Furthermore, he was never questioned as part of the initial investigation, and the entire findings of the report are based on uncorroborated and unreliable testimony. He alleges that he has suffered reputational damage as a result because he has been foreclosed from other employment opportunities. Buxton v. City of Plant City, 871 F.2d at 1037, 1042-43.
Plaintiff cites two cases, Buxton v. City of Plant City, FIa., 871 F.2d 1037 (11th Cir. 1989) and Dressier v. Jenne, 87 F. Supp.2d 1308 (S.D. Fla. 2000), in support of his contention that putting stigmatizing information in a personnel file implicates a liberty interest protected by the Due Process clause. Although he does not provide any evidence beyond his conclusory affidavit that he suffered reputational damage, the import of Buxton seems to signal a presumption that the "mere publication of the stigmatizing information automatically foreclosed [Medina] from employment opportunities." Dressier v. Jenne, 87 F. Supp.2d at 1313.
While it can be established that Plaintiff's liberty interest has been implicated due to the publication of stigmatizing information by a governmental employer, Plaintiff's evidence cannot support a finding of a deprivation as a matter of law. In order to establish that a deprivation of a public employee's liberty interest has occurred without due process of law, the employee must prove that: (1) a false statement (2) of a stigmatizing nature (3) attending a governmental employee's discharge (4) was made public (5) by the governmental employer (6) without meaningful opportunity for employee name clearing. Buxton v. City of Plant City, FIa., 871 F.2d 1037, 1042-43 (11th Cir. 1989).
The process for name-clearing hearings is not as strict as the process due for a deprivation of property interest. See Harrison v. Wille, 132 F.3d 679, 683 n. 9 (11th Cir. 1998). Plaintiff "must have the opportunity to support his allegations by argument, however brief, and if need be, by proof, however informal." Id. (citations omitted). Moreover, because the name-clearing hearing operates simply to cleanse the reputation of the aggrieved, the simple fact of a hearing accompanied by notice is usually sufficient to satisfy due process. Id. Courts in this District have held that notice of a post-termination hearing and at least one such hearing at which plaintiff was given opportunity to tell his side of the story and clear his name to be adequate for the purposes of summary judgment. See Chernov v. City of Hollywood, 819 F. Supp. 1070 (S.D. Fla. 1993) aff'd 19 F.3d 1446 (11th Cir. 1994); Natale v. Broward County, 987 F. Supp. 926, 939 (S.D. Fla. 1997). Furthermore, the timing of the hearing is irrelevant, as the hearing need not take place before termination of publication of the damaging information. See Campbell v. Pierce County, Ga., 741 F.2d 1342, 1345 (11th Cir. 1984) cert. denied 470 U.S. 1052 (1984).
Plaintiff mainly concerns himself with contesting the adequacy of the name clearing hearing. He claims that the "hearing was not transcribed or otherwise recorded, there was no compulsory process and ability to compel witnesses to come forward, and [he] has never had the opportunity to question an investigating officer with regard to the Internal Affairs investigation and the report generated thereby." Pl.'s Opp'n Br. at 16.
As a threshold issue, besides his own conclusory statements and allegations, Plaintiff offers no competent evidence that would cast doubt on the truthfulness of the statements in the file. Most of the allegations made by Medina is calculated at showing the absence of certain information, not the falsity of them. Therefore, as a preliminary matter, Plaintiff has not proved the first element to a degree sufficient for a reasonable jury to find in his favor as to the deprivation of his liberty interest.
Moreover, the Court finds that Plaintiff fails to establish the sixth element of a prima facie case of deprivation of his liberty interest, and therefore, Defendants is entitled to summary judgment as a matter of law. First, Plaintiff's claims that the hearing was not transcribed or recorded is clearly unsupported by the record. Defendant's initial Rule 26(a) disclosures lists an audiotape of the name clearing hearing as Item 2 of Exhibit B. Audiotapes and transcriptions of the hearing are a matter of public record. FLA. STAT. § 119. Indeed, this qualifies as satisfying part of Defendant's duty. Dressier v. Jenne, 87 F. Supp.2d. at 1316-17 (including a transcript of the hearing in same public record should be sufficient to satisfy the liberty interest).
Second, Plaintiff's complaints about procedural faults in the name-clearing hearing also fail. He alleges that name-clearing hearing was constitutionally insufficient due to lack of, among other things, compulsory process, compulsion of witnesses, and opportunities to question the investigating officers. Pl.'s Opp'n Br. at 16. In Dressier, the Court found sufficient two hearings provided to plaintiff in order to clear his name, where the opportunity to tell his side of the story, confront the charges against him, and have the assistance of legal counsel was sufficient to satisfy due process concerns. Id.
In the instant case, Plaintiff was given fair notice of the hearing, since he requested it in the first place. He was represented by counsel at the hearing, and was allowed to present his version of the factual situation. He has not provided any proof that he was barred from presenting witnesses. Plaintiff cannot voluntarily squander an opportunity for name-clearing and still blame the City for depriving him of a due process interest. Furthermore, the hearing is not a forum to adjudge guilt or innocence of the charges for which he was terminated — just to relate the other side of the story. See Campbell v. Pierce County, Ga, 741 F.2d 1342, 2345 (11 th Cir. 1984) ("the purpose of the hearing was not to reevaluate appellant's termination but to allow her to clear her name"). Plaintiff seems to have confused the name-clearing hearing with a termination hearing regarding a due process deprivation of a property interest, which Plaintiff expressly concedes is not at issue. While the Court sympathizes with Plaintiff's predicament, the City has more than adequately discharged its duty to provide meaningful name-clearing. Therefore, Plaintiff cannot as a matter of law establish a deprivation of his liberty interest and the second count is DISMISSED.
The Court notes that Plaintiff has not taken advantage of the internal procedures designed to ensure that law enforcement officer may "attach to the file a concise statement in response to any items included in the file identified by the officer as derogatory." FLA. STAT. § 112.533(3).
IV. CONCLUSION
THIS CAUSE came before the Court upon Defendant's Motion for Summary Judgment (D.E. No. 19), filed on July 12, 2003 .
THE COURT has carefully considered the motion, the response, and the pertinent portions of the record, and being otherwise fully advised in the premises, it is
ADJUDGED that the motion is GRANTED.
DONE AND ORDERED