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Owens v. City of Flowood

United States District Court, S.D. Mississippi, Northern Division

January 23, 2017

GLEN OWENS PLAINTIFF
v.
CITY OF FLOWOOD, MISSISSIPPI, ET AL. DEFENDANTS

          ORDER

          CARLTON W. REEVES UNITED STATES DISTRICT JUDGE

         Before the Court is the defendants' motion to dismiss. Docket No. 3. The motion has been fully briefed and the Court is ready to rule.

         I. Factual and Procedural History

         Plaintiff Glen Owens is a long-time employee of the City of Flowood's Fire Department and a former employee of the Reservoir Fire Department, where he maintained a second job. He alleges that he was forced to resign from the Reservoir Fire Department because the City of Flowood issued a policy in July 2013 prohibiting its firefighters from working for any other department. Owens claims that the City, by failing to provide a hearing or an opportunity to be heard before enacting the policy, deprived him of a property interest without due process of law. He filed this suit against the City of Flowood and members of its Board of Aldermen in their official and individual capacities, claiming a due process violation of the Fourteenth Amendment, a violation of Mississippi Code Annotated § 25-9-127, and negligent infliction of emotional distress.

         II. Legal Standard

         When considering a motion to dismiss for failure to state a claim, the Court accepts the plaintiff's factual allegations as true and makes all reasonable inferences in the plaintiff's favor. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To proceed, the complaint “must contain a short and plain statement of the claim showing that the pleader is entitled to relief.” Id. at 677-78 (quotation marks and citation omitted). This requires “more than an unadorned, the defendant-unlawfully-harmed-me accusation, ” but the complaint need not have “detailed factual allegations.” Id. at 678 (quotation marks and citation omitted). The plaintiff's claims must also be plausible on their face, which means there is “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citation omitted).

         III. Discussion

         Owens concedes that Mississippi Code § 25-9-127 only provides protection to state service employees, of which he is not. Docket No. 11. Therefore, he agrees that dismissal of the purported claim brought under the statute is appropriate. What remains to be addressed are his Fourteenth Amendment and negligent infliction of emotional distress claims.

         A. Fourteenth Amendment Claim

         At the heart of the complaint is Owens' contention that the City's newly enacted policy forced him to give up his second job at the Reservoir Fire Department, thereby depriving him of a property interest without due process of the law in violation of the Fourteenth Amendment. Docket No. 1-1. He asserts this claim against the defendants under 42 U.S.C. § 1983.[1]

         The claims against the Aldermen in their individual capacities fail because liability under § 1983 only attaches to final decision-makers. See Johnson v. La., 369 F.3d 826, 831 (5th Cir. 2004). Under Mississippi law, a municipal board acts as a body. Smith v. Bd. of Supervisors of Tallahatchie Cty., 86 So. 707, 709 (Miss. 1921). None of the members, individually, can implement policy; that requires a vote from the full board. See, e.g., Crabb v. Itawamba Cty., Miss, No. 1:04-CV-138-P-D, 2005 WL 2648017, at *2 (N.D. Miss. Oct. 17, 2005) (holding that an individual member of the county board of supervisors could not be liable for his vote under § 1983).[2] Therefore, the Aldermen cannot be held individually liable under § 1983. All that persist are the claims against the City and the Aldermen in their official capacities.

         To state a § 1983 claim against the municipality, Owens must allege a constitutional or federal law violation and an official policy or custom that was the moving force behind the violation. Piotrowski v City of Houston, 237 F.3d 567, 578 (5th Cir. 2001); Brown v. Bryan Cty., Okla, 219 F.3d 450, 457 (5th Cir. 2000).[3] Since he is claiming “a procedural due process [violation] . . ., [he] must first identify a protected life, liberty[, ] or property interest and then prove that governmental action resulted in a deprivation of that interest.” Baldwin v. Daniels, 250 F.3d 943, 946 (5th Cir. 2001). Owens does not meet the first requirement.

         He contends that he had a protectable property interest in his employment with the Reservoir Fire Department. Docket Nos. 1-1 and 11. Under Mississippi law, however, his employment was at-will “unless an express or implied contract, state law, or local ordinance indicate[d] otherwise.” Johnson v. City of Shelby, Miss., 642 F. App'x 380, 383 (5th Cir. 2016) (citing Levens v. Campbell, 733 So.2d 753, 763 (Miss. 1999)). The complaint is void of any allegations that such a contract exists and the law does not establish such a right. See Docket No. 1-1.

         Owens' responsive brief argues that his employment with the Flowood Fire Department and its Standard Operating Procedures Manual somehow created a property interest in his employment with the Reservoir Fire Department. Docket No. 11. While a detailed employment manual or handbook with an outlined disciplinary scheme can, if the relationship is not explicitly characterized as at-will, establish a property interest in continued employment, Johnson, 642 F. App'x at 383, it is difficult to conceive how one employer's policies can affect the at-will nature of another ...


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