CHARLES S. MILLER, Jr., Magistrate Judge.
In this action, plaintiff Parke W. Little is suing over several matters related to his employment and termination as a police officer for the City of Dickinson, North Dakota. Named as defendants are the City of Dickinson, former Police Chief Rummel, former Police Captain Stenberg, and City Attorney Kolling (collectively "City defendants") as well as Stark County and Sheriff Tuhy (collectively "County defendants"). Before the court are motions for summary judgment brought by the City defendants, the County defendants, and plaintiff Little.
Unless otherwise indicated, the following facts are either undisputed or have not been properly or sufficiently controverted.
Little was employed by the Dickinson Police Department for approximately five and one-half years before he was terminated by Chief Rummel on June 30, 2008. At the time of his termination, Little was a sergeant in the Department.
An intra-departmental complaint for personnel action was lodged against Little on June 19, 2008. The complaint alleged that Little had used unauthorized and improper physical force against two persons who had been arrested by other officers on June 16, 2008, after they had been involved in a motor vehicle accident and had fled on foot. The driver, Tye Maus, was detained after a pursuit to a nearby church. The passenger, Kristi Kuntz, was located a short time later by another officer in a slough a further distance away.
The specific allegations set forth in the complaint brought against Little were that:
(Doc. No. 1-5). The complaint, which was signed by Captain Stenberg, identified the complainant as: "Captain Stewart Stenberg based on verbal complaints from Tye Maus & Officer Staten." (
The Dickinson Police Department has a detailed written policy for investigating and deciding complaints made against officers. The policy provides for the use of a standard-form complaint, which, on the back, has spaces to be completed by the various departmental officers and officials as they complete their part of the investigation and decision process. The policy also provides detailed procedures for the investigation of the complaint, including interviewing witnesses and obtaining a statement from the officer that is the subject of the complaint. (Doc. No. 1-7).
The investigation of the complaint against Little was assigned to Lt. Rick Shirey. Following the Department's policy, Shirey interviewed most of the witnesses as well as Little. In addition, Lt. Shirey reviewed a DVD of a recording from the patrol vehicle in which Maus was placed as well as written reports prepared by several of the officers.
Following the completion of the investigation, Lt. Shirey prepared a detailed report that was a little over four single-spaced, typewritten pages. According to the report, the persons he interviewed advised him of the following:
(Doc. No. 39-3).
In addition to what Lt. Shirey learned during his interviews, Shirey also reviewed the written reports that had been prepared by the officers involved contemporaneous with the incidents. One was a report prepared by Officer Hanel. Hanel's report tracked what he verbally told Lt. Shirey as set forth above. In addition, the report stated that, when Little pulled Kuntz up by the handcuff chain, "Kuntz exclaimed `ow ow ow' and `you are hurting me' several times as she was lifted from the ground." (Doc. No. 39-2). The other report was from Officer Grosz. His report was also consistent with what he orally reported to Lt. Shirey during his interview. In part, the report states:
(Doc. No. 39-1).
Based on his investigation, Lt. Shirey made the following findings of fact in his investigation report:
(Doc. 39-3). Lt. Shirey then concluded the report by making a recommendation as required by the Department's policy. His recommendation was:
(
(Doc. No. 1-5).
Lt. Shirey provided his report to defendant Capt. Stenberg. Stenberg, in turn, reviewed the report and provided Chief Rummel with the following memorandum outlining his conclusions and recommendation:
(Doc. No. 39-4). In addition, Stenberg completed the portion of the complaint form entitled "TO BE COMPLETED BY OPERATIONS DIVISION COMMANDER — FINAL REVIEW." There Stenberg indicated he had completed his review on June 30, 2008, and that his recommendation was "Termination" based on his memorandum. (Doc. No. 1-5).
On the same day that Stenberg completed his review according to his memorandum, Chief Rummel and Stenberg met with Little in Stenberg's office and advised Little that he was being terminated but would be given the option of voluntarily resigning. Rummel also on June 30, 2008, completed the portion of the complaint form entitled "TO BE COMPLETED BY CHIEF OF POLICE — FINAL DETERMINATION" by checking the box indicating that the allegations had been sustained and stating that the final disposition was: "Dismissed — unless notified by Sgt. Little or his attorney differently." (Doc. No. 1-5).
The record is sparse in terms of what transpired during Rummel's and Stenberg's meeting with Little on June 30, 2008, and particularly whether Little was given an opportunity to respond to (1) the administrative charges being brought against him beyond the opportunity he had earlier been given by Lt. Shirey (which was documented in Shirey's report and had been reviewed by Stenberg and Rummel), and (2) the appropriateness of termination as opposed to some lesser discipline. One item of evidence which suggests that Little was given an opportunity to be heard at that meeting was a subsequent letter written by Rummel to Little that reads as follows:
(Doc. No. 39-5) (emphasis added). Another item of evidence suggesting that Little was given an opportunity to be heard at the June 30 meeting with Rummel and Stenberg is the following deposition testimony of Lt. Wallace, who spoke with Rummel following the meeting with Little:
(Doc. No. 50-3, p. 9).
Little ultimately decided not to submit his resignation. On July 24, 2008, his attorney requested a hearing before the City's Civil Service Commission. (Doc. No. 39-7). According to the City's governing ordinance, the Civil Service Commission was required to hold the hearing not less than ten and not more than twenty business days after an appeal had been filed. (Doc. No. 57-1).
Initially, the City took the position that Little's request was untimely because it had not been made within five days of the date of his termination, which Chief Rummel contended took place on June 30, 2008. Later, after Little's attorney filed a petition for a writ of mandamus in state court to require that the City provide the hearing, the City reversed course and, in January of 2009, stated it would provide a hearing.
The hearing was not held until August 27, 2010, however, some eighteen months after the City agreed to provide the hearing and just over two years following Little's termination. While the record is sparse in terms of the reasons for the delay beyond the point when it was determined a hearing would be provided, there is some suggestion that Little's and his attorney's conflicting schedules were the primary reasons. (Doc. No. 54-1, p. 31).
According to the minutes and hearing transcript, the hearing lasted a little over two hours. Present were the five commissioners along with Little and his attorney,
During the hearing, Little disputed the allegations that he had used unauthorized and excessive force. He denied employing any pressure-point hold on Maus and pointed to Lt. Shirey's conclusion that this allegation was not sustained. He also denied raising Kristi Kuntz to her feet using the handcuffs. Little claimed that the real reason he was terminated was because of prior run-ins he had with Capt. Stenberg as well as his having made complaints about matters within the Department, some of which involved alleged improprieties committed by Stenberg and Chief Rummel. In particular, Little referenced several specific "incidents," most of which he later detailed in his complaint in this action. Little claimed allegations of use of improper force, which he denied, and his being untruthful about it were simply an excuse for Rummel and Stenberg to get rid of him. (
In addition, Little also complained during his hearing about the process leading up to his termination. He argued it was improper under the Police Department's policy for the Capt. Stenberg to have initiated the complaint and then later decided it. He also contended he was not given an "exit interview" as required by the City's personnel policies, which he claimed trumped the Police Department's policy. Notably, however, neither Little nor his attorney complained about the delay in the holding of the hearing. (
Chief Rummel stated during his testimony that the decision to terminate Little was his. He denied that it was in retaliation for the various "incidents" referred to by Little during his testimony. He also testified that the reason why Little was terminated, as opposed to some lesser discipline being imposed, was not only because Little had used what he determined to be improper and excessive force but also because of (1) the bad example Little had set by doing so in front of his subordinate officers, (2) the fact that Little continued to deny that he had done anything improper, and (3) his concern about liability for future acts by an officer having that mind set. Finally, Chief Rummel was asked about Little's procedural complaints. He testified that there was nothing improper about the complaint having been signed by Stenberg based on complaints he had received from officers who were present on the scene. He also testified that he did meet with Little on the day he was terminated. (
After the completion of the presentation of the evidence, the consensus of the five commissioners was that they wanted more time to consider the testimony and exhibits before making. It was also decided that Little's attorney and the City Attorney should each submit proposed findings of fact, conclusions, and a proposed order. (
On September 10, 2010, the Commission issued its decision, which included detailed findings and conclusions. Notably, the findings framed the issues raised by the parties and referenced Little's testimony about the "incidents" he claimed were the real reason for his discharge. Particularly relevant here are the last four findings and the Commission's conclusions and final order:
(Doc. No. 1-8).
The City's governing ordinances provide for an appeal from a decision of the Civil Service Commission to the City Commission. (Doc. No. 57-1, p. 10).
The City Attorney's father was one of the five commissioners on the Civil Service Commission. He attended the hearing and, presumably, participated in the vote to uphold Little's termination. The City Attorney testified during his deposition that he brought the relationship to the attention of Little's attorney prior to the hearing and also discussed with him his opinion that what he believed was the governing statute on conflicts did not prohibit his father's participation. The City Attorney further testified that his recollection was that Little's attorney did not raise the issue or complain about it at the hearing and he assumed this was because Little's attorney agreed that the statute he relied upon governed as well as his interpretation of it. (Doc. No. 36-4, p. 9). Little's attorney has submitted an affidavit stating it was his recollection that he complained about the City Attorney's father's participation and that, in any event, neither he nor Little had agreed to waive the alleged conflict. (Doc. No. 49-6).
Neither the minutes of the Civil Service Commission meeting nor the hearing transcript reference a discussion about the fact that the City Attorney's father was one of the five commissioners, much less an objection or waiver. However, if the relationship was a problem and to the extent an objection was required to preserve the issue, there is no assurance the minutes are complete. Consequently, there does appear to be a disputed issue of fact as to whether an objection was made if one was necessary. But, if it was not, the City defendants have failed to proffer any evidence of an express waiver.
Finally, no evidence has been presented that the City Attorney's father's vote was a controlling or crucial vote. Further, there is no affirmative evidence that the City Attorney's father exercised undue influence over the other commissioners. During the hearing, several of the commissioners asked questions, including particularly the chairperson Ray Ann Kilen, but not the City Attorney's father. On the other hand, the record of the deliberative process that followed the hearing (if there was one) and the record of the vote have not been made a part of the record.
Little commenced this action by the filing of a pro se complaint. (Doc. No. 1). Like many pro se complaints, Little's complaint lacks clarity. That and its peculiar organization make it difficult to discern what exactly his claims are. Little later retained counsel, but no effort was made to amend the complaint. Because this is of some consequence later, the court will outline the complaint.
After introductory sections in which Little states he is suing under 42 U.S.C. § 1983 and state law, identifies the parties, and establishes jurisdiction and venue, Little proceeds in his complaint to allege factual information under headings entitled "Incident 1," Incident 2," etc., all the way through "Incident 6." (Doc. No. 1, ¶¶ 9-33). The first four are incidents that occurred before the alleged acts of improper force that are the subject of his disciplinary complaint and are incidents that Little testified to during the Civil Service Commission hearing as being the real reason for his discharge. Incident 5 consists of allegations relating to what happened that resulted in the administrative charges being brought against him, his termination by Chief Rummel, and his having filed for a writ of mandamus to force the City to provide a hearing before the Civil Service Commission. Incident 6 consists of allegations relating to the process that was followed before the Civil Service Commission.
The "incident allegations" are followed by paragraph 34, which alleges that, as result of the conduct of the defendants (purportedly as spelled out in the "incidents"), Little suffered pecuniary losses resulting from his termination and violations of his rights under the First and Fourteenth Amendments, including freedom of speech, freedom of religion, and equal protection under the law. Little then follows this with the specific pleading of numbered Counts I through IX, with Count VIII being skipped. Count I is a two-paragraph conclusory allegation of violation of § 1983, but does purport to incorporate the prior allegations. Count IX is a similar conclusory claim of violation of § 1983 against the City and Stark County, but again incorporates prior allegations. The remainder of the counts are labeled as claims for "Negligence" against one or more of the individual defendants (even though some allege constitutional violations) and each of the remaining counts is tied to one of the earlier specified "incidents." (Doc. No. 1, ¶¶ 36-60).
Little alleges in Incident 1 that, in early 2005, Capt. Stenberg caused Little's supervisor, Lt. Banyai, to issue a verbal order that Little not attend an administrative licensing hearing for a person he arrested and charged with driving under the influence as well as a second verbal order that he not attend the criminal trial. Little claimed the reason for the orders was that the defendant was a friend of Capt. Stenberg. Little claims he attended the administrative hearing and that the criminal trial was later cancelled when the defendant pled. Little alleges that he complained about the two verbal orders to Chief Rummel, contending that the direction that he not appear amounted to a felony, i.e., tampering with witnesses and informants. Little claims Rummel said he would handle the matter, but later that memoranda were issued, one by Chief Rummel and another by Lt. Banyai, reprimanding Little for continuing to discuss the matter with other officers and not letting the matter go. (Doc. No. 1, ¶¶ 9-12).
In Count II, which is entitled "Negligence against Defendant Rummel" and that specifically references Incident 1, Little alleges that Rummel had a duty to protect him by adhering to the policies and procedures of the Police Department and that Rummel violated this duty by not investigating Little's complaint against Capt. Stenberg for unlawfully causing orders to be issued with respect to Little not attending the administrative hearing and DUI criminal trial. Little alleges that this inaction by Rummel violated his right to freedom of speech under the First Amendment and resulted in his later being terminated. (Doc. No. 1, ¶¶ 38-40).
Little alleges with respect to Incident 2 that he filed a complaint with Chief Rummel on or about April 2007, alleging that certain of his fellow officers had taken fully-automatic weapons out into the county and discharged them while intoxicated. Little alleges he was never informed of what action was taken with respect to his complaint. (Doc. No. 1, ¶¶ 13-14). In Count III, entitled "Negligence against Defendant Rummel" and that specifically references Incident 2, Little alleges that Rummel breached a duty to him by failing to investigate his complaint about the matter and that this later led to his termination. (Doc. No. 1, ¶¶ 41-42).
In Incident 3, Little alleges that he received a memorandum from Lt. Banyai directing that all personnel attend a mandatory meeting with the police chaplain for spiritual wellness on March 5, 2008. Little alleges that he talked to the attorney for the Fraternal Order of Police about this matter and that the attorney told him he would talk to Chief Rummel about this constitutional violation. (Doc. No. 1, ¶¶ 15-16). In Count IV entitled "Negligence against Defendant Rummel" and that specifically references Incident 3, Little alleges that Rummel had a duty to protect him by upholding the First Amendment and that Rummel infringed upon his right to freedom of religion when he enforced a mandatory meeting with the police chaplain. Little claims that, as a result, he was deprived of his right to freedom of religion. Unlike the earlier two incidents and counts, as well as those that immediately follow as discussed next, there is no allegation in this Count that the result was that Little was terminated from his employment. (Doc. No. 1, ¶¶ 43-46). Whether this was intentional or simply an oversight is unclear from the face of the pleading. Also, unclear is whether this difference was intended to have any substantive effect.
Little alleges that Incident 4 involved a situation where Rummel, Stenberg, and a third officer named VanDoorne were off-duty and drinking in the Mavericks bar on April 14, 2008, when VanDoorne, in the presence of Rummel and Stenberg, arrested a patron for trespassing after the patron had returned to the bar after having been earlier removed by other officers. Little responded to the bar after the arrest was made and took the patron into custody. Little alleges that he later determined that no one, including the officers who had earlier removed the patron, had advised the patron he could not return. Little alleges that, as a result, the patron should not have been arrested for trespassing and the arrest was false. Little claims he filed a complaint about the unlawful arrest. He claims that on May 19, 2008, he received a memorandum from Lt. Wallace advising that he had discussed the matter with Chief Rummel and that Chief Rummel thanked him for bringing it to his attention and discussing Little's concerns. (Doc. No. 1, ¶¶ 17-22).
In the corresponding Count V, entitled "Negligence against Defendant Rummel and Stenberg" and which specifically references Incident 4, Little alleges that the defendants breached a duty to protect him when they exercised their official duties while off-duty and after consuming alcohol and by their later failure to properly investigate Little's complaint and take appropriate action. Little claims he was later terminated as a result. (Doc. No. 1, ¶¶ 47-50).
The allegations entitled Incident 5 relate to Little's encounters with Tye Maus and Kristi Kuntz that were the subject of his disciplinary complaint. Little details in these allegations what he claims happened, which, essentially, is that he used no improper force, including that he did not lift Kuntz up by the handcuffs' connecting chain. He then details the events surrounding the investigation and his termination. He alleges there were several discrepancies and problems with the complaint form as it was completed. In particular, he points to Stenberg signing and dating the complaint on June 19, 2008, which is two days after Lt. Shirey indicates on the form he received the request to investigate. Also, the date that Lt. Shirey states he received the request to investigate is different from the date that Capt. Stenberg said he assigned the matter for investigation. Finally, more fundamentally, Little takes issue with the fact that Stenberg was both the complainant and the person who made the final review. (Doc. No. 1, ¶¶ 23-28).
In Count VI, entitled "Negligence against Rummel and Stenberg" and that specifically references Incident 5, Little claims that Rummel and Stenberg had a duty to exercise due care in the administration of the City's and the Police Department's personnel policies and that they breached this duty by failing to "accurately complete investigation documents" and by overlooking discrepancies in the complaint. Little claims that the result was that he was terminated from his employment. (Doc. No. 1, ¶¶ 51-53).
Notably, Little does not complain about the lack of a pre-termination hearing. This is of particular import later.
In the allegations labeled Incident 6, Little alleges the following with respect to the post-termination hearing before the Civil Service Commission:
(Doc. No. 1, ¶¶ 29-33).
In Count VII, entitled "Negligence against Defendants Rummel, Kolling, and Tuhy" and that specifically references Incident 6, Little alleges that the specified defendants had a duty to protect him and his right to equal protection under the Fourteenth Amendment. Little claims that Rummel and Kolling violated that duty by failing to provide the requested discovery documents to Little and his attorney and that Tuhy violated this duty and his equal protection rights by ordering Kitzman not to testify. He also alleges that, as result of the defendants' conduct (that arguably includes all of what was alleged in Incident 6), he was denied a fair hearing and this resulted in his termination. (Doc. No. 1, ¶¶ 54-58).
One of Little's primary arguments in his briefing on the pending motions is that his due process rights were violated because he was not afforded adequate pre-termination notice and opportunity to be heard, citing the Supreme Court's decision in
In his briefing on the pending motions, Little makes a number of other arguments for why his due process rights were violated. The problem for some of the arguments is that there is no mention of them in the complaint. For example, Little now contends he was denied due process because his post-termination Civil Service Commission hearing was not held until two years after he was discharged. However, there is no mention in the complaint of this being a problem and it would be unfair to the defendants to now consider it.
What also makes matters confusing is that Little's most specific allegations of unfairness of the process and that his constitutional rights were violated are in a counts labeled "negligence." However, his summary allegations of violation of 42 U.S.C. § 1983 do incorporate by reference other allegations. That being the case, the court concludes that the due process issues that Little has raised in his complaint are the following:
Generally speaking, a person seeking relief under 42 U.S.C. § 1983 is not required to exhaust state remedies as a prerequisite to bringing the § 1983 action.
In his briefing on the pending motions, Little contends his termination was in retaliation for his having spoken out about matters related to one or more of the "incidents," including his complaining about having to attend a mandatory "spiritual wellness" meeting with the police chaplain. Again, while his complaint is not entirely clear because of the labeling of the many of the counts as "negligence," the court will construe it has having raised claims of retaliation for exercise of First Amendment rights of both speech and religion.
To establish a prima facie case of First Amendment retaliatory termination, Little must prove that (1) he was engaged in protected conduct; (2) he was discharged from his employment; and (3) his engagement in the protected conduct was a substantial or motivating factor in the defendants' decision to discharge him.
In this case, it does not make a difference which burden-shifting framework applies because no reasonable juror could conclude the alleged protected conduct was a substantial or motiving factor in the Civil Service Commission's decision affirming Little's termination, given:
As noted earlier, Little alleges in Count VII that Rummel and Kolling violated his rights to equal protection in connection with the process that followed his termination. Little has failed to explain why the challenged conduct amounts to a denial of equal protection, much less cite any authority. Consequently, his equal protection claim fails for this reason. Further, even if the allegations could be construed as implicitly contending he was treated differently from other employees, he would have alleged nothing more than a "class-of-one" equal protection claim that the Supreme Court has held to be an invalid theory under the equal protection clause in the public employment context.
What is not clear from the confusing manner in which Little has pled his claims is whether the complaint pleads any stand-alone claims of constitutional violations for which he would be seeking damages apart from those related to his termination from employment. The City defendants in their motion for summary judgment presented arguments for why there would be no liability if Little was making such claims and Little did not respond to them.
Little labels a number of claims as being ones for "negligence." To the extent Little is attempting to assert state-law claims for negligence, almost all of them fail as a matter of law for lack of any recognized duty that was owed to him.
Also, as already discussed, there is a lack of any causal connection between the alleged incidents of negligence and the damages that Little appears to claim resulted from his termination given the decision of the Civil Service Commission. In other words, the negligence claims fail for lack of proximate cause between the allegedly negligent acts and the damages Little is seeking resulting from his termination.
The court agrees with the County defendants that the complaint fails to state a cognizable claim as to them. Little has failed to cite to any authority that it somehow violated Little's constitutional rights for Sheriff Tuhy to instruct Deputy Kitzman not to voluntarily appear in his official capacity at the Civil Service Commission hearing and provide the County's personnel file. The same is true to the extent that Little is attempting to assert some sort of state law claim of negligence. Likewise, Sheriff Tuhy is entitled to qualified immunity with respect to any claim of constitutional violation as well as immunity under N.D.C.C. § 32-12.1-04 for any state-law claim of negligence.
Based on the foregoing, it is hereby
On the other hand, the Supreme Court has observed that disqualification for bias and prejudice was generally not permitted under traditional common-law rules and has been reluctant to find a deprivation of due process, except in the more extreme cases and generally only when the allegedly biased decision-maker has a personal interest. As for disqualification based on other matters, such as "kinship," the Court has suggested (without deciding) that this may simply be a matter of legislative discretion and not a constitutional requirement.
The City defendants also argue that the City Attorney's father was one of five Commission members, that only a quorum was required to act, and there is no indication he was the crucial vote. Again, the United States Supreme Court has not addressed this issue and, so far, its decisions involving multi-person tribunals where it has found a deprivation of due process have been limited to cases where the person with the alleged bias was determined to have provided the crucial vote.
Given the uncertainty of the law in this area, even if participation in the Civil Service Commission hearing by both the City Attorney and his father created a due process problem and the issue had been properly exhausted, City Attorney Kolling would be entitled to qualified immunity.
There appears to be little of substance to the remaining allegations. For example, there was no separate City personnel manual. Rather, all of the City's personnel policies were adopted by ordinance and most, if not all of the relevant ones, were incorporated in the City Code, both which would have been available from the City Auditor's office (
With respect to the complaint being initiated by Stenberg and his being the final reviewer, there is no federal due process concern even if this violated the Police Department's or the City's personnel policies, which is doubtful.
Finally, as for Sheriff Tuhy and his instruction to Deputy Kitzman not to appear voluntarily on behalf of Little and present the County's personnel file, Little's attorney made no contemporaneous objection or request for a continuance to secure additional evidence. Also, he did not attempt to call Sheriff Tuhy who was in the audience. And, more importantly with respect to the City defendants, there is no evidence that they colluded with Sheriff Tuhy with respect to his not making Deputy Kitzman available on a voluntary basis.
(Doc. No. 1-2) (emphasis in original). Further, the "wellness committee," which was headed by Lt. Banyai, had sponsored other "wellness" programs for which the focus was the wellness of the individual officers and not crime victims, including programs about exercise and nutrition. (Doc. No. 39-10, p. 11). That being said, even if Little had intended on bringing a freestanding claim for violation of his First Amendment rights, his claim would appear to fail since he named only Chief Rummel, and possibly the City, as defendants to the claim. And here, the record is insufficient to show how, if at all, Chief Rummel was involved with setting up of the meeting and requiring mandatory attendance. In fact, Little's attorney never questioned Rummel about the subject during his deposition. As for the City, there is no evidence that the meeting was held pursuant to a City policy.
