LEE v. HUTSON Civ. A. No. C84-179A.
600 F.Supp. 957 (1984)
Jaxie LEE, Plaintiff, v. Sheriff Bill HUTSON and Cobb County, Defendants.
United States District Court, N.D. Georgia, Atlanta Division.
October 11, 1984.
Ralph Goldberg, Atlanta, Ga., for plaintiff.
Theodore Freeman, Drew, Eckl & Farnham, Atlanta, Ga., David P. Hartin, Sams, Glover & Gentry, Marietta, Ga., for defendants.
FORRESTER, District Judge.
This case involves an action pursuant to 42 U.S.C. § 1983 alleging that the plaintiff's termination from her former employment in the Cobb County Sheriff's Department violated her rights under the Ninth and Fourteenth Amendments of the United States Constitution. Additionally, plaintiff has asserted that her rights under Georgia state law have also been violated. The case is now pending before the court on the following motions: a motion by the plaintiff to strike two of the defenses asserted in defendants' answer; a motion by the plaintiff to disqualify counsel for defendants; a motion by plaintiff to compel discovery; a motion by plaintiff seeking additional discovery; and a motion by plaintiff for partial summary judgment or in the alternative for disqualification of defendants' counsel. These motions shall be treated seriatim.
I. THE MOTION BY PLAINTIFF TO DISQUALIFY.
On March 28, 1984 the plaintiff moved to disqualify defendants' counsel Hartin from representing both defendants Bill Hutson, the Sheriff of Cobb County, and Cobb County. The basis for this motion is that plaintiff perceives a conflict of interest between representing the county and the county officer. The defendants' response to this motion to disqualify is to admit plaintiff's assertion that the acts of defendant Hutson are also the acts of Cobb County. The defendant argues, therefore, that should plaintiff prevail on the merits of this case, any judgment would be assessed against and paid by the county. However, the defendant Sheriff and the defendant county remain exposed to potentially conflicting interests with respect to the pendent state claims, given the county's assertion of sovereign immunity as a defense to those state claims.
Joint representation of a municipality and individual defendants has been held to represent a conflict of interest because of the potentially adverse interests of the defendants. Dunton v. County of Suffolk, 729 F.2d 903 (2d Cir.1984); Shadid v. Jackson, 521 F.Supp. 87 (E.D.Tex.1981). The basis for the disqualification lies in the duty of complete loyalty of an attorney to his client and the danger that in cases of joint representation such as this, that loyalty will be divided. DR 5-105 of the Code of Professional Responsibility prohibits an attorney from accepting or continuing employment if the interests of another client may impair the independent professional judgment of the lawyer.
The possibility that the interests of the individual defendants and the municipality in a section 1983 action will be adverse has been thoroughly discussed by the Second Circuit Court of Appeals in Dunton v. County of Suffolk, 729 F.2d 903 (1984) and by the district court in Shadid v. Jackson, 521 F.Supp. 87 (E.D.Tex.1981).
The court's observation that the multiple representation in this case creates a potential for divided loyalties does not necessarily require that defense counsel be disqualified. Both DR 5-105 and Model Rule 1.7 allow multiple representation if the attorney believes that he can adequately represent the interests of each of the clients and if each of the clients consents to the multiple representation after a complete and candid consultation as to the possible effects of such representation. See DR 5-105(C);
Because DR 5-105 and Model Rule 1.7 protect the interests of the defendants in this action, rather than plaintiffs, and because those defendants should have an opportunity to consent to joint representation by defense counsel, plaintiff's motion to disqualify is DENIED.
II. THE MOTION TO STRIKE.
Plaintiff has moved the court, on March 29, 1984, to strike defendants' affirmative defenses numbers 8 and 9 "... for the reason that the same are insufficient as a matter of law." In its response, the defendants concede that defense number 8 is insufficient as a matter of law. Accordingly, plaintiff's motion to strike defense number 8 is GRANTED.
III. THE MOTION TO COMPEL.
On April 23, 1984, the plaintiff filed her motion for this court to compel the defendants to produce, pursuant to a request for production of documents, "the complete personnel files of the Cobb County Sheriff's Department (including the disciplinary records) of ... William Moore." (Deletion in original). The plaintiff contends that pursuant to Rule 26(b)(1) of the Federal Rules of Civil Procedure, the requested material will be relevant for purposes of impeaching Mr. Moore.
The defendants' response to the motion to compel states first that the defendants will refuse to turn over in civil discovery the personnel files of employees not directly involved in the litigation unless there is a showing of "good cause." The defendants point to the case of Wharton v. Lybrand, Ross Brothers & Montgomery, 41 F.R.D. 177 (E.D.N.Y.1966), as standing for the proposition that discovery cannot be had simply for the purpose of impeachment, absent a showing of "good cause." The court in Wharton does not define its concept of "good cause." It is the view of this court, however, that plaintiff has not made a sufficient showing to justify discovery of this material. The plaintiff will endeavor to show at trial, according to the brief in support of the motion to compel, that "... William Moore, her immediate superior, approved her dissemination of information and that, between the time of the First Grand Jury (which did not return an indictment) and the hearing before the Civil Service Board, Mr. Moore changed his testimony." Plaintiff has not shown that the personnel records of William Moore are in any way relevant to those contentions. Plaintiff has not shown that Moore is likely to be called at trial by either side in a situation adverse to her, requiring her to impeach his credibility. Plaintiff's motion to compel is therefore DENIED, with leave to renew upon a showing that she will be forced to deal with Moore in a cross-examination situation, whether he is called by defendants or by plaintiff as an adverse witness.
IV. THE MOTION FOR ADDITIONAL DISCOVERY.
On June 25, 1984, the plaintiff filed a one-page document entitled "Motion and Brief Seeking Additional Discovery." This pleading purports to represent that the plaintiff has suspended discovery while endeavoring to negotiate a settlement of the case, and needs an extension of discovery at this time in order to depose at least six more witnesses. This pleading does not in any way comply with Local Rule 91.1. It is unaccompanied by an affidavit to support the allegations of fact made therein. Pursuant to the Local Rule, the Clerk should not have accepted this document for filing, and the court will not consider it. The motion for additional discovery is DENIED for failure to comply with the Local Rules.
V. THE MOTION FOR PARTIAL SUMMARY JUDGMENT OR IN THE ALTERNATIVE FOR DISQUALIFICATION.
The plaintiff in this section 1983 action has moved for summary judgment, requesting the court to find that as a matter
The plaintiff is a former employee of the Sheriff's Department of Cobb County. On November 30, 1983, plaintiff was sent the following notice from the Sheriff:
The plaintiff appealed her termination to the Cobb County Civil Service Board, which conducted a hearing regarding plaintiff's termination on January 17, 1984. The hearing transcript documents that at the hearing the Cobb County Civil Service Board accepted evidence in the form of the testimony of twelve witnesses, and several documents. Exhibit H to Plaintiff's Motion for Summary Judgment. The plaintiff was represented at the hearing, and had an opportunity to cross-examine all witnesses, as well as to call witnesses in her own behalf. At the conclusion of that hearing, the Cobb County Civil Service Board voted three-to-two to uphold the decision of the sheriff to terminate plaintiff's employment. Following that hearing, plaintiff took no action with respect to state remedies; rather, she filed this section 1983 action alleging deprivations of her right to due process.
In support of her motion for summary judgment, the plaintiff alleges that the failure of the Cobb County Civil Service Board to issue an opinion containing specific findings of fact and conclusions of law violated her due process rights under Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). Second, the plaintiff alleges that Cobb County and its sheriff violated her rights to due process in that she alleges that certain of the testimony given before the Board was perjured, a fact which was not revealed to the Board by Cobb County's agents.
The threshold inquiry in a section 1983 action based upon the fourteenth amendment's due process clause is whether the plaintiff was deprived of life, liberty, or property under color of state law. See Gilmere v. City of Atlanta, 737 F.2d 894, 905 (11th Cir.1984). Neither party in the present case has argued the question of whether the plaintiff has a property interest in continued employment with Cobb County. The United States Supreme Court has held that
Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). In order to determine whether plaintiff has a property interest in her job under Georgia law, it is necessary to examine the Civil Service Act
A determination that a person was deprived of a property interest under color of state law, however, does not establish entitlement to a section 1983 remedy. The fourteenth amendment to the United States Constitution protects only against deprivation of a property interest without due process of law. The plaintiff has alleged that she was deprived of her property interest without due process because of alleged irregularities in the conduct of the hearing. It is the opinion of this court, however, that a more fundamental issue is raised by this case. There is no question that both of the alleged due process violations put forward by plaintiff were acts which could not be anticipated. Plaintiff is not challenging the structure of the system provided by the State of Georgia for hearings in employment termination cases. Rather, plaintiff alleges that in one hearing agents of Cobb County engaged in an unauthorized Brady violation, and that the Cobb County Civil Service Board or Sheriff Hutson failed to give reasons for their decision, which under Georgia precedent is a violation of state law. See Brownlee v. Williams, 233 Ga. at 556, 212 S.E.2d 359.
In Parratt v. Taylor, the Supreme Court held that a section 1983 action for negligent deprivation of property under color of state law would not lie where there were adequate remedies at state law to redress the grievance. The basis of this holding was succinctly stated in the following language approved by the Court:
451 U.S. at 542, 101 S.Ct. at 1916, citing Bonner v. Coughlin, 517 F.2d 1311, 1319 (7th Cir.1975), modified en banc, 545 F.2d 565 (1976), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 529 (1978). This term in Hudson v. Palmer, ___ U.S. ___, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), the Supreme Court expanded the Parratt rationale to encompass intentional deprivations of property under color of state law. In Hudson, the Court noted as follows:
___ U.S. ___, 104 S.Ct. at 3203. Hudson stands for the proposition that as to both intentional and negligent deprivations of property, the state's action is not complete "until and unless it provides or refuses to provide a suitable post-deprivation remedy." Id. at 3204.
The Eleventh Circuit Court of Appeals, in Gilmere v. City of Atlanta, 737 F.2d 894, has extended the rationale of Parratt to deprivations of liberty interests. Id. at 907-08. Plaintiff's complaint in the present case alleges deprivations of property, and, although not encompassed on this motion for summary judgment, deprivations of liberty.
This court has reviewed the law of the State of Georgia respecting the actions taken by civil service boards in counties. Having done so, it appears to the court that there is an adequate post-deprivation remedy under the state law of Georgia sufficient to preclude a section 1983 claim by this plaintiff. In the words of Parratt, the plaintiff in this case is not bringing a due process challenge to an "established state procedure." Rather, she alleges that the procedure in place was misused by particular state officials. The laws of the State of Georgia provide an adequate remedy for this situation. As a preliminary matter, the court notes that the Cobb County Civil Service Board can best be characterized as a quasi-judicial body. The procedures under which that Board operates substantiate this conclusion. First, as noted above, any employee who is dismissed shall have the right of appeal to the Civil Service Board, and the Board will hear the appeal at its next regularly scheduled meeting. Georgia Laws, 1964 Session, Vol. 2, at 2508. The decisions of the Board as to whether dismissals were for proper cause are binding on the governing authority of Cobb County. Id. The Board keeps records and minutes of its procedures. Id. at 2507. In a 1977 amendment to the Cobb County Civil Service Act, the Board was given the power to reverse adverse employment actions which are contrary to the Board's rules and regulations. Georgia Laws, 1977 Session, Vol. 2, at 3212. The procedures under which the Board conducts these hearings were amended in 1978 to provide that
Georgia Laws, 1978 Session, Vol. 2, at 3637-3638. A review of the transcript of the hearing held in the present case further supports this court's view that the Cobb County Civil Service Board operates in a quasi-judicial fashion.
Decisions of the state courts of Georgia also confirm that county civil service boards are quasi-judicial bodies. In Anderson v. McMurry, 217 Ga. 145, 121 S.E.2d 22 (1961), the Georgia Supreme Court noted that "... a quasi-judicial action ... is one in which all parties are as a matter of right entitled to notice and to a hearing, with the opportunity afforded to present evidence under judicial forms of procedure." Id. at 150, 121 S.E.2d 22, citing South View Cemetery Association v. Hailey, 199 Ga. 478, 34 S.E.2d 863 (1945). In Anderson, the State Supreme Court interpreted the laws providing for the DeKalb County Merit Board to create a body which acts in a judicial capacity. The law establishing the DeKalb County Merit Board is very similar to the one establishing the Cobb County Civil Service Board. See 217 Ga. at 150-51, 121 S.E.2d 22. A similar result was reached in Thompson v. Dunn, 102 Ga.App. 164, 115 S.E.2d 754 (1960), in which the Georgia Court of Appeals held that the Fulton County Civil Service Board acts in a quasi-judicial capacity. As noted above, the Fulton County Civil Service Act is quite similar to the Cobb County Civil Service Act. The court therefore concludes that under Georgia law and under the act creating it, the Cobb County Civil Service Board acts in a quasi-judicial capacity.
The importance of determining that the Civil Service Board acts in a quasi-judicial capacity lies in the fact that under Georgia law a party aggrieved by one acting in a judicial capacity has the right to petition the superior court of the county for a writ of certiorari to review the acts of that inferior adjudicatory. O.C.G.A. § 5-4-3 provides that
Although the sanction of the superior court judge is necessary for issuance of the writ of certiorari, Bellew v. State Highway Department, 127 Ga.App. 301, 193 S.E.2d 202 (1972), a refusal by the superior court judge to sanction issuance of the writ is reviewable by the Georgia courts of appeal. Jones v. Anderson, 106 Ga.App. 590, 127 S.E.2d 719 (1962). From the foregoing, it is apparent that the plaintiff, feeling aggrieved by the decision of the Cobb County Civil Service Board, had the right to petition the Superior Court for a writ of certiorari.
Under Georgia law, review under a writ of certiorari is not the same type of appellate review normally thought of in that context. For example, upon certiorari the judge of the Superior Court may exercise original discretion as to the correctness of the verdict, a privilege unpossessed by other courts of review. Atlantic C.L.R.R.
Id. 181 Ga. at 458, 182 S.E. 519. Given the discretion vested in superior court judges in reviewing actions of quasi-judicial bodies on certiorari, it is readily apparent that the plaintiff had an avenue under state law in which she could have presented her arguments respecting the conduct of the Cobb County Civil Service Board hearing. Because the judge of the superior court reviews on certiorari as if he or she were reviewing a motion for a new trial, aggrieved petitioners have the capacity to present arguments that: the verdict is contrary to evidence and justice, O.C.G.A. § 5-5-20; the verdict is against the weight of the evidence, O.C.G.A. § 5-5-21; evidence was illegally admitted or excluded below, O.C. G.A. § 5-5-22; evidence has been newly discovered, O.C.G.A. § 5-5-23; and any other grounds in the sound exercise of legal discretion by the presiding judge, O.C. G.A. § 5-5-25.
The court is of the opinion that plaintiff's objections to the admission and use of certain evidence before the Cobb County Civil Service Board would permit the sustaining of a petition for certiorari on several of the grounds enumerated above. Most particularly, if, as plaintiff alleges, the county obtained the decision of the Cobb County Civil Service Board by use of uncorrected perjured testimony in violation of Brady v. Maryland, and plaintiff had no knowledge at the time of the hearing that those statements were perjured, certiorari would lie on the ground of newly discovered evidence. Of course, if plaintiff in this case cannot meet the newly discovered evidence standard, in that she had at the time of the hearing information that the testimony was perjured, then she cannot be heard to complain that this was not brought to the attention of the Civil Service Board at the time. Moreover, plaintiff's argument that testimony before the Cobb County Civil Service Board was perjured lies within the right of the superior court judge, on certiorari, to pass on the credibility of witnesses. Brown v. Mosteller, supra, 181 Ga. at 458, 182 S.E. 519. As noted by Brown, if questions of fact are involved, the superior court judge may sustain the certiorari and remand for a new hearing. See also O.C. G.A. § 5-4-14. In addition, if the failure of the Cobb County Civil Service Board or Sheriff Hutson to provide reasons for the decision was, as plaintiff alleges, in contravention of Goldberg v. Kelly, then that would constitute a legal error which is reversible on certiorari. O.C.G.A. § 5-4-14(b). This is particularly true in view of the fact that Georgia law
This court's concern with this question has been aptly voiced by the United States Supreme Court in Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1975). In Bishop, a city patrolman brought a § 1983 action alleging, inter alia, that the reasons given for his discharge from the police force were false. The Supreme Court, per Justice Stevens, held the following:
Id. at 349-50, 96 S.Ct. at 2079-80 (emphasis added). The court observes that its foregoing discussion would appear to provide the basis for dismissal of the present case. However, no such motion is pending before the court. Therefore, the court merely determines that at this juncture, plaintiff's motion for summary judgment is DENIED.
The court wishes to discuss briefly the role played by Patsy v. Board of Regents of State of Florida, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982). In Patsy, the Supreme Court held that exhaustion of state administrative remedies is not a prerequisite to an action under section 1983. Patsy obviously raises the question of how the "no exhaustion" doctrine interacts with Parratt's "adequate state remedies" doctrine. This court views the distinction as follows. Patsy addressed the situation in which an otherwise colorable § 1983 claim was dismissed for failure to exhaust state administrative remedies. Parratt, on the other hand, held that no § 1983 claim was made out where adequate state remedies existed to redress the grievance. This distinction is the same one drawn by the Ninth Circuit Court of Appeals in Haygood v. Younger, 718 F.2d 1472 (9th Cir.1983). In that case, the district court had refused to apply Parratt's reasoning to the plaintiff's allegation of a deprivation of liberty interest, because the district court believed that to do so would revive the requirement that a section 1983 plaintiff must first exhaust
Id. at 1480.
The court would additionally note that Parratt itself, as well as Hudson, both contemplate that the existence of an adequate state judicial remedy precludes a § 1983 action. Parratt speaks in terms of a post-deprivation "hearing." 451 U.S. at 541, 101 S.Ct. at 1916. Additionally, Parratt cites Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977), a case which held that because there were adequate state tort remedies at law, dismissal of a § 1983 claim was proper. Parratt 451 U.S. at 542-43, 101 S.Ct. at 1916-17. Similarly, in Hudson v. Palmer, the rationale denying the plaintiff's § 1983 claim rested squarely on the availability under Virginia law of common law remedies. This court concludes that the availability of adequate state judicial remedies, under Parratt, Hudson, and Gilmere, dictate a holding that plaintiff has not stated a claim under section 1983. Thus, Patsy is inapposite.
The plaintiff has argued as an alternative to the motion for summary judgment that if the motion for summary judgment is denied, David Hartin, defendant's counsel, must be disqualified since plaintiff may call him as a witness. Given the court's rationale in denying plaintiff's motion for summary judgment, it is unnecessary for the court to consider this issue. If an appropriate motion to dismiss is brought, and the court grants it, there would be no need to disqualify Hartin. Therefore, the alternative motion to disqualify is DENIED, with leave to renew pending the court's further disposition of this case.
In summary, plaintiff's motion to disqualify on the grounds of conflict of interest is DENIED, subject to defense counsel's obtaining consent from his clients to the multiple representation. Plaintiff's motion to strike is GRANTED IN PART and DENIED IN PART. Plaintiff's motion to compel is DENIED. Plaintiff's motion for additional discovery is DENIED for failure to comply with the Local Rules. Finally, plaintiff's motion for summary judgment or in the alternative for disqualification is DENIED.
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