Opinion
Case No. A3-99-36
April 14, 2000
MEMORANDUM AND ORDER
I. Introduction
The defendants have moved the Court for summary judgment on plaintiff's seven-claim complaint. (doc. #20). Plaintiff resists the motion. (doc. #25). For his federal claims, plaintiff alleges that he has been deprived of property and liberty without due process of law and that his First Amendment rights have been violated. (doc. #1). Additionally, plaintiff alleges several violations of the North Dakota Century Code and presents a claim for emotional distress. (doc. #1).
Oral argument on this matter was heard on April 5, 2000. Based on the submissions of the parties, the arguments of counsel, and the entire file, the Court rules as follows.
II. Facts
The undisputed facts, viewed in the light most favorable to the plaintiff, establish the following. Plaintiff is the Griggs County Sheriff. He has served as Sheriff continuously since April, 1985; first being appointed, and then winning election and reelection. The Griggs County Sheriff's office is a two-person operation which includes the sheriff and a deputy. The deputy position, a non-elected position, was held by Donald Fiebiger during the relevant times in this litigation.
Plaintiff and his deputy had had "a very good working relationship." But this changed in the spring of 1997. During this time several significant events occurred. First, Deputy Fiebiger provided information to the Griggs County Commission and the Griggs County State's Attorney about the allegedly improper use of county funds by the plaintiff. This information prompted the Griggs County Commission to begin an investigation into the finances of the sheriff's office. The initial investigation was conducted by the North Dakota Bureau of Criminal Investigation (BCI) and the State Auditor's office. The concerns revolved around the use and ownership of computer equipment, purchases of fuel, long distance and cellular phone charges, and a few miscellaneous expenses. The amount in controversy roughly equaled $2,957.33.
Next, during this time period, the Griggs County Commission along with the State's Attorney were meeting in closed executive sessions allegedly to discuss the allegations against the plaintiff. Deputy Fiebiger was allowed to attend some of these executive sessions, but plaintiff was not. Additionally, neither the individual commissioners nor the State's Attorney would divulge any information to plaintiff about these meetings. These executive sessions, purportedly held pursuant to the North Dakota Open Records law, were later criticized by the Attorney General, prompting the commission to reconvene and reenact at least one meeting.
Once the initial investigation and audit were complete, plaintiff was summoned to a meeting with the State's Attorney, the County Commission, an agent of BCI, a representative from the auditor's office, and the deputy. All had been provided a copy of the audit report which was purportedly a "confidential report to the Commission." Upon plaintiff's arrival at the meeting, which was already in progress, the deputy left taking a copy of the report with him. Plaintiff was then questioned regarding the findings of the audit. At the end of the questioning, which plaintiff characterizes as hostile, the reports were gathered up and plaintiff was not allowed to retain a copy. A copy of the report did, however, make it into the hands of the local media and a copy was left in the courthouse break room. Plaintiff alleges that these actions were taken to discredit him in the public's eye. Finally, during this time of the investigation and the commission's executive session meetings, plaintiff noted that Deputy Fiebiger was becoming increasingly insubordinate to him. According to plaintiff, the deputy had left an emergency response vehicle with a flat tire, he had failed to inform the Sheriff of relevant information when the Sheriff answered a back-up call for a domestic situation, and he had improperly notified the Sheriff before taking time off of work. Plaintiff characterized the deputy's attitude as juvenile and dangerous. These circumstances led plaintiff to suspend the deputy without pay for insubordination.
The County Commission and the State's Attorney became concerned that the suspension was in retaliation to the deputy's allegations against the plaintiff. On this basis the commission granted the deputy's request for a "due process" hearing on his suspension. A hearing date was set. Shortly thereafter, the attorney for the plaintiff requested that the hearing be rescheduled due to a conflict in the attorney's own schedule. It is unclear whether the commission declined to reschedule the hearing date or simply did not have time to consider the request; in any event, the hearing date was not changed. Plaintiff then moved the local district court to enjoin the hearing and the motion was denied. The hearing was held as scheduled.
Plaintiff attended the hearing, without counsel, but refused to participate in the hearing upon the advice of his counsel. Plaintiff did submit a written statement with attachments to the commission. After closing the evidentiary portion of the hearing, the commission held their deliberation. Two days later, the board reconvened and voted not to uphold the suspension of Deputy Fiebiger. The commission then voted to pay Deputy Fiebiger for all time of the suspension. Shortly thereafter, the deputy resigned his position.
Around this same time, June of 1997, the Attorney General issued an opinion on the investigation of the sheriff's office. Robert P. Bennett, Assistant Attorney General, concluded that there was insufficient evidence to support further investigation of or a criminal charge against the plaintiff. It was recommended that the county's policies on verification of expenditures and travel be tightened to avoid future problems. Despite the opinion of the Attorney General, the County Commission and State's Attorney went forward with their own investigation.
The commission voted to order plaintiff to reconstruct bills for the prior two years. After this was done, the State's Attorney served a formal notice and demand on plaintiff directing him to provide an audit of all his expenses for the previous three years. In July of 1997, plaintiff reimbursed the county $253.15 for some of the discrepancies and errors revealed by the audit report. The inquiry, however, still did not end. It is unclear whether the State's Attorney or the County Commission initiated it, but a second criminal investigation began in October of 1997.
This time the evaluation of the investigative materials was turned over to an outside State's Attorney. Patricia Burke, Burleigh County State's Attorney, reviewed the material and concluded that criminal charges were unwarranted. It was her opinion that the Griggs County Commission should consider adopting policies and procedures to prevent this type of situation from arising again. It is also clear that, at a minimum, Sheriff Paul Hendrickson showed poor judgment in conducting the affairs of the office of Griggs County Sheriff by intermingling his personal finances with that of the office and his use of county equipment.
Consequently, no criminal charges were ever brought against plaintiff. No disciplinary proceedings were undertaken against him. He suffered no reduction in salary and was never removed as sheriff, although there was an unsuccessful recall petition effort. While he initially lost the primary in 1998, plaintiff campaigned and successfully won the general election. He remains Griggs County Sheriff. Plaintiff contends that the investigation into his office gleaned unprecedented publicity in the area and brought discredit and disgrace to him, his reputation, and his family. Plaintiff had applied for another law enforcement position with the Mid-states Organized Crime Information Center but withdrew his name before being interviewed because of the investigation.
Plaintiff brought suit in this Court seeking relief for three claims pursuant to Title 42, United States Code, Section 1983, three claims for violations of the North Dakota Century Code, and a claim of emotional distress. The Court has jurisdiction over plaintiff's § 1983 actions pursuant to 28 U.S.C. § 1331, 1343(3) (4). It is asserted that the Court should exercise its supplemental jurisdiction pursuant to 28 U.S.C. § 1367 over the remaining claims.
III. Discussion
A. Summary Judgment Standard
Summary judgment is appropriate only when, viewed in the light most favorable to the nonmoving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Graning v. Sherburne County, 172 F.3d 611, 614 (8th Cir. 1999). A fact is "material" if it might affect the outcome of a case under the applicable substantive law, and a factual dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Graning, 172 F.3d at 614-615.
The "basic inquiry" for purposes of summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one sided that one party must prevail as a matter of law." Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1376 (8th Cir. 1996) (citing Anderson, 477 U.S. at 251-52). In making this inquiry, however, this court will not "weigh the evidence, make credibility determinations, or attempt to determine the truth of the matter." Id. (citing Anderson, 477 U.S. at 249). Rather, this court's function is to determine only whether a dispute is genuine, and "[i]f reasonable minds could differ as to the import of the evidence," summary judgment is inappropriate. Id. at 1377 (citing Anderson, 477 U.S. at 250).
The moving party has the initial burden of demonstrating to the court that there is no genuine issue of fact. Webb v. Lawrence County, 144 F.3d 1131, 1134 (8th Cir. 1998) (citing Celotex Corp., 477 U.S. at 323). Once the moving party has met this burden, however, the nonmoving party cannot simply rest on the mere denials or allegations in the pleadings; rather, the nonmovant must set forth specific facts showing that there is a general issue for trial. Id. (citing Fed.R.Civ.P. 56(e)).
B. Section 1983 Actions
Plaintiff seeks relief under 42 U.S.C. § 1983, alleging that the defendants deprived him of his Fourteenth Amendment due process rights and violated his First Amendment rights. Plaintiff has sued the county, most of the county commissioners in both their individual and official capacities, and the State's Attorney in both her individual and official capacity. Recognizing that this is a suit against the defendants in both their official and individual capacities, the court sets forth these principles.
As a general proposition, in order to establish a § 1983 claim plaintiff must show that the defendants, acting under color of state law, deprived him of a constitutional right, privilege, or immunity. See 42 U.S.C. § 1983; Graning, 172 F.3d at 615. To establish a claim against the defendants in their official capacity, and thus the county, plaintiff must show that the deprivation was a result of a governmental policy, practice, or custom. See Monell v. Department of Soc. Servs., 436 U.S. 658, 691, 694 (1978) (municipalities cannot be held liable under § 1983 on respondeat superior theory unless injury was inflicted pursuant to execution of municipal policy or custom); Spencer v. Knapheide Truck Equip. Co., 183 F.3d 902, 905 (8th Cir. 1999). Insofar as the suit affects the defendants in their individual capacity they are entitled to raise, and have done so here, the defense of qualified immunity. See Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999). Because plaintiff's suit suffers from the same fatal flaws regardless of the official or individual designation, the analysis is presented concurrently. See Siegert v. Gilley, 500 U.S. 226, 232 (1991) (holding that under the analytic structure of qualified immunity it must first be determined whether the plaintiff has asserted a violation of a constitutional right at all).
For his § 1983 actions plaintiff alleges that he has been deprived of his Fourteenth Amendment due process rights and his First Amendment rights. There is no argument here that the defendants were not acting under color of state law; thus, the court turns directly to the alleged Fourteenth Amendment violation. The Fourteenth Amendment provides that no state shall "deprive any person of life, liberty, or property, without due process of law. . . ." U.S. Const. amend. XIV, § 1. To set forth a procedural due process claim, plaintiff must establish both that his protected property or liberty interests were at stake and that the defendants deprived him of that interest without due process of law. Gordon v. Hansen, 168 F.3d 1109, 1114 (8th Cir. 1999). Plaintiff alleges that he has been deprived of both property and liberty interests.
Property interests are not created by the Constitution but arise from independent sources such as state law. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985) (citing Board of Regents v. Roth, 408 U.S. 564, 577 (1972)). Plaintiff asserts a property interest in his position as Sheriff, an elected official. Defendants argue that an elected official standing for reelection has no legitimate claim or expectation for reelection and thus has no property interest in the position. Plaintiff's assertion poses an interesting question which both parties concede that the North Dakota Supreme Court has never addressed. If forced to decide the issue this court would likely agree with defendants.
Fortunately, there is no need to resolve this issue for the simple reason that plaintiff has not suffered any deprivation of his alleged property interest. Plaintiff still holds the position of sheriff, he was never suspended, and never lost any pay or benefits during this time. See Miller v. Lovell, 14 F.3d 20, 21 (8th Cir. 1994) (concluding as a matter of law that there had been no deprivation of a property interest where the employee was not punished in anyway; he did not lose pay, benefits, job status or tenure). While there was an unsuccessful recall effort and a lost primary election, plaintiff prevailed in his status as sheriff. Without a deprivation plaintiff's § 1983 action for deprivation of property without due process of law fails as a matter of law. See id.
Plaintiff next claims that the defendants' handling of the investigation into his office ruined his reputation within the community, thereby depriving him of his liberty without due process of law. It has long been understood that defamation or damage to reputation by a state actor, standing alone, does not deprive a person of a protected liberty interest in violation of the Fourteenth Amendment. See Paul v. Davis, 424 U.S. 693, 708-09, 712 (1976). See also Siegert, 500 U.S. at 233; Wade v. Goodwin, 843 F.2d 1150, 1152 (8th Cir. 1988). If this were not the case then every defamation by a state actor would amount to a constitutional violation, yet this is not so. See Siegert, 500 U.S. at 233. In order to establish a due process violation, the complained of state action must deprive the stigmatized party of a right previously held under state law; see Wade, 843 F.2d at 1152, or the defamation must occur in the course of a termination from employment; see Mascho v. Gee, 24 F.3d 1037, 1039 (8th Cir. 1994), or there must be some type of an accompanying alteration of legal status; see LaSociete Generale Immobiliere v. Minneapolis Community Dev. Agency, 44 F.3d 629, 640 (8th Cir. 1994).
The Court assumes, without deciding, that the defendants' conduct was sufficiently stigmatizing to plaintiff since "[t]he requisite stigma has generally been found in cases in which the employee has been accused of dishonesty, immorality, criminality, racism or the like." See Waddell v. Forney, 108 F.3d 889, 895 (8th Cir. 1997). This is not enough, however, to establish a claim for a constitutionally protected liberty interest. Plaintiff was not removed from his position, he was never disciplined, and he did not lose any pay or benefits.
Plaintiff points out that due to the ongoing criminal investigations into his office he had no alternative except to withdraw his application for a position with the Mid-states Organized Crime Information Center. While a liberty interest may be affected where the stigma imposed upon the plaintiff forecloses future employment opportunities, see Board of Regents of State Colleges v. Roth, 408 U.S. 564, 572-73 (1972), such is not the case here. Plaintiff unilaterally withdrew his name from consideration before being interviewed and without knowing whether this job opportunity would be foreclosed due to the investigations. Thus, plaintiff has not established that his future employment opportunities have been foreclosed. Moreover, plaintiff did not lose any rights previously held under state law. Since plaintiff cannot tie the loss of reputation or stigmatization to any attendant loss of liberty, the claim fails as a matter of law. See LaSociete, 44 F.3d at 641.
Plaintiff asserts that the defendants interfered with the way he performs his elected position, contravened his authority to manage and discipline his staff, and tried to have him removed from his position through the unsuccessful recall effort. The court views these actions as part and parcel of the alleged stigma or defamation imposed upon plaintiff and not as any separate loss of previously held state rights.
The Court now turns to plaintiff's remaining § 1983 claim that his First Amendment rights were violated during Deputy Fiebiger's due process hearing. The undisputed facts establish that plaintiff attended the hearing but upon advice of counsel did not participate even though he would have been allowed to do so. Defendants did not prevent plaintiff from exercising his First Amendment rights at the hearing, instead plaintiff voluntarily chose not to participate. He cannot hold his decision against the defendants. Moreover, the fact that plaintiff's chosen attorney could not attend the hearing due to a personal scheduling conflict does not amount to a denial of plaintiff's First Amendment rights. Plaintiff has demonstrated no deprivation by the defendants of his First Amendment rights thus this claim too fails as a matter of law. See McIntosh v. Arkansas Republican Party-Frank White Election Comm., 766 F.2d 337, 340-41 (8th Cir. 1985) (holding that section 1983 action based upon First Amendment fails where plaintiff suffered no deprivation).
As an aside, the Court notes that plaintiff has not addressed his First Amendment claim in his responsive brief. Local Rule 7.1(C) provides that "failure to file a brief by the adverse party shall be deemed an admission that, in the opinion of counsel, the motion is well taken." While plaintiff has not failed to file a brief, the failure to address the issue at all is surely no less an admission that the motion for summary judgment on this issue is well taken. See also Coney v. Union Pacific R.R., 136 F.3d 1195, 1196 (8th Cir. 1998) (providing that failure to raise or discuss an issue in party's brief on appeal is deemed abandonment of that issue).
The Court has found that all three of plaintiff's § 1983 claims fail as a matter of law thus the question of exercising supplemental jurisdiction over plaintiff's remaining state claims arises. See 28 U.S.C. § 1367. Plaintiff asserts three claims, a violation of North Dakota Century Code § 11-10-11, a violation of North Dakota Century Code § 12.1-14-01, and a claim for abuse of administrative authority, which have never been recognized as causes of action by the North Dakota Supreme Court. This Court is unwilling to plow new state ground. Consequently, the Court declines to exercise supplemental jurisdiction over the plaintiff's remaining claims.See id. § 1367(c)(1).
IV. Conclusion
Defendants' motion for summary judgment, (doc. #20), is GRANTED with respect to plaintiff's § 1983 claims and these claims are DISMISSED WITH PREJUDICE. The Court declines to exercise supplemental jurisdiction over the plaintiff's remaining claims and these claims are DISMISSED WITHOUT PREJUDICE.
SO ORDERED.