Schmitt v. City of Pensacola, et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

N.D. Fla.January 27, 2017

2 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION MATTHEW SCHMITT, Plaintiff, CASE NO.: 3-16-cv-421-RV/EMT v. CITY OF PENSACOLA, et al., Defendants. _______________________________________/ DEFENDANTS’ PARTIAL MOTION TO DISMISS COUNT I OF PLAINTIFF’S COMPLAINT AND MEMORANDUM OF LAW COME NOW, Defendants, CITY OF PENSACOLA, et al., (“Defendants”), by and through undersigned counsel, pursuant to Fed. R. Civ. P. 12(b)(6) and N.D. Fla. Loc. R. 7.1(D), and file this Partial Motion to Dismiss Plaintiff’s 42 U.S.C § 1981 (brought under 42 U.S.C § 1983) claims against Ashton Hayward, Eric Olson, and Edward Sisson in their official and individual capacities, and states the following in support thereof: 1. Plaintiff’s Complaint alleges, under “Count I - Relation” and elsewhere, violations of Title VII and 42 U.S.C § 1981 (brought under 42 U.S.C § 1983). (Doc. 1). In Paragraphs 5-7, Plaintiff alleges that Defendants Hayward, Olson, and Sisson, respectively, violated his rights under Section 1983 in both their official and individual capacities. Case 3:16-cv-00421-RV-EMT Document 13 Filed 01/27/17 Page 1 of 12 3 2. It is well-settled that under Section 1983 an “official capacity” suit is considered a suit against the entity itself. Consequently, Plaintiff’s claims against Defendants Hayward, Olson, and Sisson in their official capacities are actually against the City of Pensacola. Any claim against Defendants Hayward, Olson, and Sisson in their official capacities, to the extent it is pled, is due to be dismissed. 3. Additionally, Plaintiff fails to state a claim under Section 1983 against Defendants Hayward, Olson, and Sisson in their individual capacities. Based upon the face of the Complaint, Plaintiff fails to allege that Defendants took a materially adverse action against him or violated a known constitutional right. 4. Moreover, Defendants are entitled to qualified immunity from actions under 42 U.S.C. § 1983. Plaintiff’s Complaint makes clear that Defendants Hayward, Olson, and Sisson were performing discretionary functions in their respective positions and that none of their actions violated any clearly established statutory or constitutional rights. WHEREFORE, for the reasons and legal authorities articulated more fully below, the Defendant respectfully requests the Partial Motion to Dismiss be granted. SUPPORTING MEMORANDUM OF LAW I. Standard of Review A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a plaintiff's complaint. See Fed.R.Civ.P. 12(b)(6) (providing Case 3:16-cv-00421-RV-EMT Document 13 Filed 01/27/17 Page 2 of 12 4 defense of “failure to state a claim upon which relief can be granted”). When ruling on a 12(b)(6) motion, a court must accept the factual allegations in the complaint as true, but is not bound to accept as true any “legal conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662 (2009). (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In order to state a claim for relief, the pleadings must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). A Rule 12(b)(6) motion to dismiss should be granted if the plaintiff is unable to articulate enough facts “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 545. II. Official Capacity Claims Against Hayward, Olson, and Sisson In Paragraphs 5-7, Plaintiff alleges that Defendants Hayward, Olson, and Sisson, respectively, violated his rights under Section 1983 in both their official and individual capacities. (Doc. 1). Eleventh Circuit precedent dictates that claims against municipal officers in their official capacity are “functionally equivalent” to claims against the entity that they represent. Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991) (affirming directed verdict as to official capacity defendants where city remained as a defendant); Sherrod v. Palm Beach County School Dist., 237 Fed. Appx. 423, 425-26 (11th Cir. 2007) (affirming dismissal of claims against individual defendant school district employees in their official capacity in suit against Florida school district). Case 3:16-cv-00421-RV-EMT Document 13 Filed 01/27/17 Page 3 of 12 5 Here, by suing the City of Pensacola as well as Ashton Hayward, Eric Olson, and Edward Sisson in their official capacities, Plaintiff has created an unnecessary redundancy. Mighty v. Miami-Dade County, 2016 WL 4205844 at 3 (11th Cir. 2016) (finding no error where the court only addressed and dismissed claims against the county). Thus, the Court should dismiss with prejudice Plaintiff’s Section 1983 official capacity claims against Defendants Hayward, Olson, and Sisson.1 III. Failure to State Section 1983 Claim Plaintiff (Caucasian male) also fails to state a claim under Section 1983 against Defendants Hayward (Caucasian male), Olson (Caucasian male), and Sisson (Caucasian male) in their individual capacities. Section 1983 provides a remedy when a person acting under color of state law deprives a plaintiff of a right, privilege, or immunity secured by the Constitution, laws, or treaties of the United States. 42 U.S.C. § 1983; see, e.g., Graham v. Connor, 490 U.S. 386, 393-94 (1989) (explaining that “§ 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred”) (internal quotations omitted); Cummings v. DeKalb County, 24 F.3d 1349, 1355 (11th Cir. 1994). 1 Plaintiff has indicated that he will voluntarily dismiss his “official capacity” claims against Hayward, Olson, and Sisson. However, Plaintiff has not yet withdrawn the claims, so in the abundance of caution Defendant moves to dismiss them here. Case 3:16-cv-00421-RV-EMT Document 13 Filed 01/27/17 Page 4 of 12 6 To establish a Section 1983 claim, Plaintiff must be able to show that (1) Defendants acted “under color” of law as defined by Section 1983 and cases interpreting that language, and (2) Defendants’ actions deprived him of a specific constitutional right. Here, Plaintiff’s Section 1983 clam is due to be dismissed under Rule 12(b)(6) for failure to state a claim because he has failed to allege that the deprivation of his constitutional rights was the result of a deliberate action attributable to Hayward, Olson, or Sisson. The allegations against each defendant, respectively, are addressed below. A. Ashton Hayward The entirety of Plaintiff’s factual allegations regarding Hayward is that he “manages all city employees, including the Plaintiff” (¶ 10) and “[o]n May 10, 2016, Defendant Mayor Hayward and Defendant City of Pensacola terminated the employment of the Plaintiff and Deputy Chief Glover” (¶ 33). Plaintiff fails to allege any facts that, accepted as true, show that Hayward’s actions deprived him of a specific constitutional right. As noted above, an official capacity suit is considered a suit against the entity itself. A claim against the City and against its Mayor is, in effect, a claim against the same entity. Thus, Plaintiff clearly alleges that the City- and not Hayward, Olson, or Sisson-terminated his employment which allegedly resulted in a deprivation of his constitutional rights. Case 3:16-cv-00421-RV-EMT Document 13 Filed 01/27/17 Page 5 of 12 7 Moreover, Plaintiff goes on to allege in Paragraph 34 that Hayward’s decision was subject to appeal, that he availed himself to the appeals procedure, and that “the City formally denied said appeal and the termination became official.” Consequently, Hayward in his individual capacity was incapable of depriving a constitutional right when any disciplinary decision was subject to review via the appeals procedure. Plaintiff may argue that his Complaint sufficiently states a Section 1983 claim against Hayward in Paragraphs 37 and 42, but these allegations are precisely the type of conclusory deductions of fact that fail to adequately put a party on notice. “As a general rule, conclusory allegations and unwarranted deductions of fact are not admitted as true in a motion to dismiss.” S. Florida Water Mgmt. Dist. v. Montalvo, 84 F.3d 402, 409 n. 10 (11th Cir. 1996). A district court considering a motion to dismiss shall begin by identifying conclusory allegations that are not entitled to an assumption of truth-legal conclusions must be supported by factual allegations. Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010). Moreover, a close examination of Paragraph 42 (which Defendants understand to be the summary of Plaintiff’s cause(s) of action) reveals that, as a matter of law, Plaintiff only suffered a materially adverse action when the City terminated his employment. Although Plaintiff claims that the Defendants failed to rectify the harassment and discrimination complained of [regarding Glover], placed Case 3:16-cv-00421-RV-EMT Document 13 Filed 01/27/17 Page 6 of 12 8 him on administrative leave [with pay], changed the appeal process for all City personnel, subjected him to an unwarranted and public investigation, and publicly demeaned his good name, none of these are adverse employment actions nor do they violate a clearly established constitutional right.2 Furthermore, the Complaint fails to state which constitutional right was allegedly violated.3 B. Eric Olson and Edward Sisson Plaintiff’s Section 1983 claims against Olson and Sisson in their individual capacities similarly fail a Rule 12(b)(6) challenge because Plaintiff has failed to assert that the alleged deprivation of his constitutional rights was the result of a deliberate action attributable to Olson or Sisson. Nowhere in the Complaint does Plaintiff allege that Olson or Sisson made the decision to deny a pay raise. Nowhere in the Complaint does Plaintiff allege that Olson or Sisson made the decision to 2 Courts have consistently held that being placed on administrative leave pending an internal investigation is not an adverse employment action that would support a viable claim of discrimination or retaliation. See Carrio v. Apollo Grp., 2009 WL 2460983, at *15 (N.D. Ga. 2009) (citing numerous authorities). Plaintiff’s allegation that Glover was being subjected to discrimination does not establish a prima facie claim that Plaintiff was being subjected to discrimination. Defendants are unaware of any case law stating that changing a municipal personnel policy which affects all employees equally can constitute an adverse action. While Plaintiff alleges that Defendants “publicly demeaned his good name,” he has not offered any facts to support this empty claim, and it is precisely the conclusory allegations that are not entitled to an assumption of truth. 3 Although Plaintiff mentions “racial discrimination and retaliation” in Paragraph 36, it is still unclear if Plaintiff is asserting he was the subject of racial discrimination or rather if it was Joseph Glover. It appears Plaintiff is referencing his alleged meeting with Olson during which he stated that Glover was being discriminated against on the basis of his race. Plaintiff, Hayward, Olson, and Sisson are all white males. Plaintiff has offered no other support for his vaguely alleged claim of racial discrimination. Case 3:16-cv-00421-RV-EMT Document 13 Filed 01/27/17 Page 7 of 12 9 terminate his employment. Again, based upon a review of the Complaint Defendants are unable to discern how Plaintiff’s constitutional rights were violated. Notwithstanding the foregoing, Plaintiff’s failure to state a claim against Olson and Sisson in their individual capacities is made clearest in Paragraphs 33 and 34 of the Complaint: Mayor Hayward, in his official capacity as mayor of the City of Pensacola, made the decision to terminate Plaintiff’s employment. That decision was then subject to meaningful review via the City’s appeals procedure, to which Plaintiff alleges he availed himself. Neither Olson nor Sisson took that action or were involved in that procedure, which Plaintiff ostensibly alleges deprived him of an (unspecified) constitutional right. IV. Hayward, Olson and Sisson are Entitled to Qualified Immunity Under the doctrine of qualified immunity, government officials performing discretionary functions may not be held individually liable for civil damages so long as their conduct does not violate “ ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Lassiter v. Alabama A&M Univ., 28 F.3d 1146, 1149 (11th Cir. 1994) (en banc) (quoting Harlow v. Fitzgerald, 457 U.S. 800 (1982)). Indeed, the U.S. Supreme Court has made clear that the “driving force” behind creation of the qualified immunity doctrine was a desire to ensure that “ ‘insubstantial claims’ against government officials [will] be resolved prior to discovery.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Case 3:16-cv-00421-RV-EMT Document 13 Filed 01/27/17 Page 8 of 12 10 Courts apply a two-pronged test when evaluating a claim of qualified immunity: (1) whether, on the facts alleged, a constitutional right was violated; and (2) whether the right was “clearly established.” Saucier v. Katz, 533 U.S. 194 (2001). The court may exercise its discretion in deciding which of the two prongs should be addressed first in light of the circumstances in the particular case at hand. Pearson v. Callahan, 555 U.S. 223 (2009). The court may grant qualified immunity if the plaintiff fails to carry his burden on either of the two prongs. See, e.g., Pearson, 555 U.S. at 231-32 (evaluating only Saucier’s second prong and holding that law enforcement officers were entitled to qualified immunity because the unlawfulness of their conduct was not clearly established). Although Plaintiff’s single-count Complaint states, “Count I - Retaliation,” he also makes reference to alleged discrimination in various places in the Complaint. Accordingly, Defendants address both theories below. A. Section 1983 Retaliation The Eleventh Circuit has held that no clearly established right exists under the Equal Protection Clause to be free from retaliation. Thus, even if the court accepts Plaintiff’s alleged facts as true, they cannot demonstrate that the actions of Hayward, Olson, or Sisson violated a constitutional right. Ratliff v. DeKalb County, Ga., 62 F.3d 338, 340 (11th Cir. 1995). Accordingly, Hayward, Olson, or Sisson are entitled to qualified immunity as to Plaintiff’s Section 1983 retaliation claims. Case 3:16-cv-00421-RV-EMT Document 13 Filed 01/27/17 Page 9 of 12 11 B. Section 1983 Race Discrimination Hayward, Olson, and Sisson are also entitled to qualified immunity from Plaintiff’s Section 1983 race discrimination claims. Even accepting Plaintiff’s allegations as true, it is clear Defendants were performing discretionary functions and, as the burden shifts to Plaintiff, he fails to establish the first prong of qualified immunity test. Hayward was performing discretionary functions in his capacity as Mayor of the City when he announced the decision to dismiss Schmitt based upon the findings of the independent, third-party investigation performed by Attorney Russell Van Sickle of Beggs & Lane, RLLP. (¶¶ 29, 32-33). Importantly, that decision was subject to review and could have been reversed, as acknowledge in Plaintiff’s Complaint. (¶ 34). Olson was performing discretionary functions in his position as City Administrator when he met with Plaintiff (¶¶ 11-15), advised Plaintiff of the City’s decision to not grant his request for a pay raise (¶ 17), and answered questions about the independent, third-party investigation concerning Plaintiff’s actions as Fire Chief (¶¶ 24-28). With respect to Sisson, even accepting Plaintiff’s allegations as true, he was performing discretionary functions in his position as Chief Human Resources Case 3:16-cv-00421-RV-EMT Document 13 Filed 01/27/17 Page 10 of 12 12 Officer when he raised concerns regarding Plaintiff’s management of the Fire Department (¶ 30). Turning to the two-prong test, it is clear Plaintiff has failed to allege a violation of a constitutional right. Although Plaintiff has alleged that Sisson was discriminating against Glover, that treatment has nothing to do with Plaintiff’s statutory or constitutional rights. Plaintiff fails to state a claim of race discrimination when the facts alleged state that some other person (Glover) was actually the subject of the discriminatory treatment Moreover, as the Complaint itself makes clear, neither Olson nor Sisson had the authority to take adverse action against Plaintiff. They are merely employees of the City and not decision-makers. That authority, instead, rests with the City, which employed Plaintiff. Based upon the face of the Complaint, Plaintiff has not shown that his constitutional rights were violated because of either Hayward, Olson, or Sisson’s actions, much less that their actions-outlined above-violated a clearly established right. WHEREFORE, Defendants respectfully request that Plaintiff’s Section 1983 claims against Ashton Hayward, Eric Olson, and Edward Sisson in their official and individual capacities be dismissed with prejudice. Case 3:16-cv-00421-RV-EMT Document 13 Filed 01/27/17 Page 11 of 12 13 Respectfully submitted this 27th day of January, 2017. /s/ Robert E. Larkin Robert E. Larkin, III Fla. Bar No. 160814 J. Wes Gay Fla. Bar No. 104743 ALLEN NORTON & BLUE, P.A. 906 North Monroe Street Tallahassee, Florida 32303 Tel: (850) 561-3503 Fax: (850) 561-0332 Attorneys for Defendants CERTIFICATE OF SERVICE I HEREBY CERTIFY that on January 27, 2017, undersigned electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system, which will send a notice of electronic filing: Joshua R. Gale, Esq., Wiggins, Childs, Pantazis, Fisher, Goldfarb, LCC, 101. N. Woodland Blvd., Suite 600, Deland, Florida 32720, D.G. Pantazis, Jr., Esq., and Rocco Calamusa, Esq., Wiggins, Childs, Pantazis, Fisher, Goldfarb, LCC, The Kress Building, 301 Nineteenth St. North, Birmingham, Alabama 35202. /s/ Robert E. Larkin Attorney Case 3:16-cv-00421-RV-EMT Document 13 Filed 01/27/17 Page 12 of 12