MEMORANDUM OPINION AND ORDER
De MENT, District Judge.
This matter is now before the court on the defendants' brief in support of their motion to dismiss, filed August 6, 1993, which the court construes as a motion for summary judgment.
For the reasons set forth below, the plaintiffs' motion to consider further materials is due to be denied and the defendants' motion to strike is due to be granted. Further, the defendants' motion for summary judgment is due to be granted, and/or in the alternative, the court finds that the individual defendants are entitled to qualified immunity. The court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343.
The evidence, viewed in a light most favorable to the plaintiff, suggests the following facts:
The plaintiffs, Harvey and Bobbie Bowman, operate a daycare facility in Shelby County, Alabama, known as "University of Tots-Southlake". The defendants are the Alabama Department of Human Resources (DHR), Charles Cleveland, Commissioner of DHR, Andrew Hornsby, Commissioner of DHR, the Jefferson County Department, Jeddie Carnes, Licensing Consultant for DHR, James Long, Legal Counsel for DHR, and Mike Gibson, an employee of DHR.
In November of 1989, the plaintiffs opened the University of Tots daycare facility. DHR inspected the facility prior to its opening, found no deficiencies, and issued the plaintiffs a license. A license expires in two years from the date of issuance. Therefore, by its terms, the plaintiffs' license was due to
In June, 1991, the plaintiffs requested an administrative hearing. In October, 1991, the administrative hearing commenced. The hearing was delayed due to numerous discovery disputes and several motions to dismiss by the plaintiffs based on these disputes. The hearing was further delayed because of scheduling problems between the parties. After consuming a total of 13 days of testimony, the hearing was finally concluded on August 25, 1992.
The hearing officer issued his final decision on February 17, 1993. His decision recommended that the plaintiffs be given a six-month probationary permit. On March 29, 1993, in response to the applications for rehearing filed by both parties, the hearing officer rescinded his original recommendation and issued a full day care license to the plaintiffs.
However, the plaintiffs filed the current action on October 30, 1992, after the hearing had concluded, but before the hearing officer issued his decision. The plaintiffs alleged that their constitutional rights to due process of law were violated by the defendants, while acting under color of state law, in the following ways: (1) the defendants violated the laws of the state of Alabama and DHR's policies and procedures by intentionally suppressing claims of complaints regarding the daycare and by failing or refusing to notify the plaintiffs of the deficiencies, thereby preventing the plaintiffs from refuting such complaints in a timely fashion; (2) the defendants violated DHR's policy and procedure by failing to provide consulting services to the plaintiffs; (3) the defendants refused to produce certain documents to the plaintiffs during the pre-revocation hearing even though they were directed to produce them by the hearing officer; and (4) the defendants refused to produce a critical witness who worked for DHR and who was subpoenaed through DHR who subsequently died during the hearing. All of these allegations, the plaintiffs contend, are in violation of 42 U.S.C. § 1983.
Further, the plaintiffs assert that the defendants violated both 42 U.S.C. §§ 1983 and 1985 in that the defendants conspired to deny the plaintiffs due process when they released confidential documents and information to the Birmingham News, in violation of both the DHR's policy and procedures and in violation of the hearing officer's order not to discuss the hearing with the media.
I. Plaintiffs' Motion to Consider Further Evidence
On June 17, 1994, the plaintiffs filed a motion in which they asked the court to consider further evidence regarding the pending motions to dismiss. However, prior to this motion, on March 9, 1994, the court entered an order stating that no further pleadings on this matter would be accepted by the court after March 23, 1994. Accordingly, the court finds that the plaintiffs' motion is due to be denied as untimely filed.
II. Defendants' Motions to Strike More Definite Statement
At the February 17, 1994 pretrial conference, the court, upon agreement by the parties, directed the plaintiffs to file a more definite statement in which the plaintiffs were to set forth in detail the facts which they contend give rise to the causes of actions alleged in both the complaint and the amendment to complaint. On March 9, 1994, the plaintiffs filed a 13 page pleading entitled "Plaintiff's [sic] More Definite Statement." On March 16, 1994, the defendants filed motions to strike the more definite statement contending that this pleading was in essence an amendment to the complaint which actually
In both the complaint and the amendment to the complaint, the plaintiffs repeatedly stated that they were denied due process because: (1) the defendants violated DHR's policy and procedure, [Compl. at 5, 6, 8, 11]; and (2) the defendants repeatedly violated the administrative hearing officer's orders by refusing to produce certain documents and witnesses to the plaintiffs and by releasing confidential information to the media. [Compl. at 5, 6, 9-11]. These allegations of violations of the plaintiffs' procedural due process are the thrust of the plaintiffs' complaint.
However, in the more definite statement, the plaintiffs, while reasserting and elaborating on the allegations in the complaint, also assert for the first time claims of deliberate indifference by the defendants. Specifically, the plaintiffs contend that in counts one and two, the defendant Hornsby "exhibited deliberate indifference to his responsibilities in that the policies of D.H.R., as formulated or applied, resulted in such a lack of training and supervision such as to constitute a deliberate indifference to the Constitutional rights of the Plaintiffs." [Pls. More Definite Statement at 3, 4]. Also, the plaintiffs allege that the defendant Cleveland "exhibited deliberate indifference to his responsibilities as Commissioner, in that the policies of D.H.R. as formulated or applied resulted in such a lack of training and supervision as to constitute a deliberate indifference to Plaintiffs' constitutional rights in that there is no procedure in place to guarantee that licensees have access to their filed even under orders from a hearing officer." [Id. at 5]. Further, the plaintiffs assert that the defendant Cleveland "exhibited deliberate indifference ... in that the policies and procedures of D.H.R., in regard to the dissemination of the material to the press, as formulated or applied, resulted in such a lack of training and supervision to cause deliberate indifference to plaintiffs' Constitutional rights to due process...." [Id. at 10]. The more definite statement is the first time that the plaintiffs have made these allegations.
The court agrees with the defendants that these allegations change the complexity of the case. The plaintiffs' claims of "deliberate indifference" and "lack of training and supervision" imply an attack on the adequacy of DHR's established procedures. However, the complaint alleges the defendants violated the plaintiffs' due process rights by failing to follow the established state procedure. These are two entirely different allegations. Alleging that the established state procedures deny due process and alleging that the failure to follow the established state procedure denies due process require separate considerations. Rather than filing a more definite statement, the plaintiffs have essentially filed an amendment to the complaint by alleging these new claims.
The court notes that this case has been pending for almost two years and the motion for summary judgment has been pending for almost a year. At such a late stage in the proceedings, the court finds that an amendment to the complaint would be prejudicial to the defendants and would warrant the court to reopen discovery and order a new briefing schedule on the defendants' summary judgment motion. Accordingly, the motion to strike the plaintiffs' more definite statement is due to be granted.
III. Motion for Summary Judgment
A. Summary Judgment Standard
Summary judgment can be entered on a claim only if it is shown "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The Supreme Court has stated:
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2549, 91 L.Ed.2d 265 (1986). In further elaboration on the summary judgment standard, the Court has said that "there is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (citations omitted). Summary judgment is improper "if the dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. at 2510. See Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir.1989). The court is to construe the evidence and all factual inferences arising from it in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970).
B. Due Process
The plaintiffs have alleged that the defendants have intentionally conspired to deprive them due process of law as required by the 14th Amendment in violation of 42 U.S.C. §§ 1983 and 1985. The Due Process Clause of the 14th Amendment provides two different kinds of constitutional protection: procedural due process and substantive due process. "A violation of either of these kinds of protection may form the basis of a suit under section 1983." McKinney v. Pate, 20 F.3d 1550, 1555 (11th Cir.1994). Though the complaint is unclear, the plaintiffs may be alleging violations of both substantive and procedural due process. Therefore, the court will begin its analysis on the issue of substantive due process.
1. Substantive Due Process
The court's finding as to whether the facts as alleged in the complaint state a substantive due process claim is controlled by the Eleventh Circuit's recent holding in McKinney v. Pate, 20 F.3d 1550 (11th Cir.1994). In McKinney, the Osceola County Board of County Commissioners ("the Board"), after conducting three days of hearings, terminated McKinney from his position as the Osceola County Building Official. McKinney then brought suit against the Board under 42 U.S.C. § 1983 alleging that the various charges brought against him were pretextual and that his termination violated his constitutional rights and denied him substantive due process under the 14th Amendment. The court determined that:
McKinney, 20 F.3d at 1556. The court explained that Supreme Court precedent demonstrates that because McKinney's "employment rights are state-created rights and are not `fundamental' rights created by the Constitution, they do not enjoy substantive due process protection," but are entitled only to "the procedural component of the Due Process Clause." Id. at 1559. The court then held that McKinney's claim implicates only procedural — and not substantive — due process protection.
Though the facts in McKinney involved state employment law, the implication of its holding is that it applies to all nonlegislative acts which involve state-created rights. See McKinney, 20 F.3d at 1556 n. 9.
2. Procedural Due Process
In this instant case, the fundamental issue is whether the plaintiffs were deprived of their property right to their license without due process of law.
Zinermon v. Burch, 494 U.S. 113, 127, 110 S.Ct. 975, 984, 108 L.Ed.2d 100 (1990). Due process requires that when a state seeks to terminate an interest, "it must afford `notice and opportunity for hearing appropriate to the nature of the case....'" Bell v. Burson, 402 U.S. 535, 542, 91 S.Ct. 1586, 1591, 29 L.Ed.2d 90 (1971) (citations omitted).
However, the first issue that this court must determine is when did the deprivation of the Bowmans' property right occur. At the time the Bowmans received notice of DHR's intent to revoke their license, it is clear that the Bowmans had a valid license and that there was no immediate deprivation. In fact, the letter indicated to the plaintiffs that they had a right to a hearing before the license would be revoked. Therefore, originally, the administrative hearing was a "prerevocation hearing", as it is referred to in the complaint. [Compl. at 5-6]. However, while the hearing was in progress, the plaintiffs' current license expired on November 20, 1991.
Even though they were allowed to operate the daycare pending the hearing, it is clear that the plaintiffs were deprived of their license prior to completion of the hearing.
Parratt, 451 U.S. at 540-41, 101 S.Ct. at 1915-16.
In the instant action, the plaintiffs specifically allege that the defendants, individually or in concert with one another, willfully conspired to deny them procedural due process in failing to renew their license and/or in attempting to revoke their current license in that they
[Compl. at 6]. The plaintiffs further contend that the defendants conspired to deprive them due process of law in that they released confidential information to The Birmingham News in violation of the policy and procedure of DHR. In other words, the plaintiffs contend that the defendants through these actions failed to follow established state procedures.
McKinney v. Pate, 20 F.3d 1550, 1562-63 (11th Cir.1994) (citations omitted). Thus, even though it is alleged that the defendants intentionally conspired to deprive the plaintiffs of their property interest in the daycare center license by violating DHR's policy and procedure and by refusing to follow the administrative hearing officer's orders, the plaintiffs' action would still fail if the state's post-deprivation hearing satisfies the requirements of procedural due process.
In Parratt and Hudson, the Court held that post-deprivation remedies are all the process that is due if they are the only remedies the state could be expected to provide. Parratt, 451 U.S. 527, 101 S.Ct. 1908; Hudson, 468 U.S. 517, 104 S.Ct. 3194. The Court further stated that if the deprivation is due to the "random and unauthorized" acts of a state employee, the state could not be expected to provide a meaningful hearing prior to the deprivation. Id.
Easter House v. Felder, 910 F.2d 1387, 1404 (7th Cir.1990), cert. denied, 498 U.S. 1067, 111 S.Ct. 783, 112 L.Ed.2d 846 (1991). In these situations, the state could only be expected to provide meaningful post-deprivation remedies which must be procedurally adequate to redress the wrongful deprivation.
In the instant action, the plaintiffs have asserted that the defendants Hornsby, Cleveland, Long, and Gibson conspired to violated DHR's policy and procedure. These acts can only be characterized as "random and unauthorized" intentional acts because they are in direct violation of the established state procedure. "The state can no more anticipate and control in advance the random and unauthorized intentional conduct of its employees than it can anticipate similar negligent conduct." Hudson, 468 U.S. at 533, 104 S.Ct. at 3203. See Easter House, 910 F.2d 1387 (holding that employees' licensing conspiracy were nothing more than a random and unauthorized decision that completely disregarded established state procedures). Accordingly, this court must look to the adequacy of the post-deprivation remedy to determine whether the plaintiffs received procedural due process protection as provided for under the Constitution.
The court finds that the post-deprivation remedies that the plaintiffs received provided them with a full measure of procedural due process. The plaintiffs were given notice and an opportunity to be heard through an administrative hearing. The hearing included the following:
In fact, it is hard for the court to understand how the plaintiffs contend that the procedure was inadequate, especially in the instant matter. The determination of the hearing officer was that even though there was proof that the plaintiffs violated the minimum standards of DHR, these violations were not severe enough to warrant a revocation of the plaintiffs' license. The hearing officer then reinstated the license and made it retroactive to cover the time period for which the Bowmans were operating without a license.
In weighing the factors set out earlier in Mathews, 424 U.S. 319, 96 S.Ct. 893, it is clear that the post-deprivation remedies provided to the plaintiffs meet the procedural protections required by the Constitution. First, the hearing provided to the plaintiffs recognizes the importance of the plaintiffs' property right in their license by providing the plaintiffs with an administrative hearing. Second, the state procedures recognizes the "risk of an erroneous deprivation ... through the procedures used" and provides a opportunity to be fully heard on any deprivation that has occurred. Finally, the procedures considers the state's interest in protecting the children at the daycare center. The administrative hearing provided to the plaintiffs strikes a careful balance between insuring the safety and welfare of children in daycare centers and protecting the plaintiffs' property right in a daycare license.
Accordingly, the court finds that the defendants' motion for summary judgment is due to be granted because the plaintiffs were given all the procedural due process protection available to them under the Constitution.
C. Qualified Immunity
However, even had the court found that the plaintiffs' due process rights were violated, the individual defendants would still be entitled to qualified immunity under Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82
In Davis, the Court was presented with the issue of whether an official who violated the plaintiff's federally protected rights, which were not clearly established, would lose his qualified immunity because his conduct was violative of a clearly established state law. The Court determined that "[o]fficials sued for constitutional violations do not lose their qualified immunity merely because their conduct violates some statutory or administrative provision." Davis, 468 U.S. at 194, 104 S.Ct. at 3019. "The Court held in Davis that an official's clear violation of a state administrative regulation does not allow a § 1983 plaintiff to overcome the official's qualified immunity.... A plaintiff who seeks damages ... may overcome the defendant official's qualified immunity only by showing that those [constitutional or statutory] rights were clearly established." Elder v. Holloway, ___ U.S. ____, 114 S.Ct. 1019, 1023, 127 L.Ed.2d 344 (1994).
The defendants contend that the plaintiffs have asserted against the individual defendants only violations of state regulations. They argue that these state law violations do not defeat their qualified immunity under the Davis standard because they are not violations of a federally protected right.
In Davis, the Court reasoned that
Davis, 468 U.S. at 195, 104 S.Ct. at 3019-20. Such a result would be unacceptable because it
Id., 468 U.S. at 195, 104 S.Ct. at 3019.
However, the Court stated that "[s]tate law may bear upon a claim under the due process clause when the property interest protected by the Fourteenth Amendment are created by state law." Davis, 468 U.S. at 193 n. 11, 104 S.Ct. at 3018 n. 11. See Board of Regents v. Roth, 408 U.S. 564, 576, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). The Court noted, however, that the appellee in Davis did not contend that the procedural rules in state law govern the constitutional analysis of what process was due to him under the Fourteenth Amendment. Davis, 468 U.S. at 193 n. 11, 104 S.Ct. at 3018 n. 11. "Indeed, because federal law determines what process is due, the violation of the state
Spruytte v. Walters, 753 F.2d 498 (6th Cir. 1985) (finding that officials were not entitled to qualified immunity where the administrative rule that they violated was the very rule that created the property interest).
In the instant matter, had the court found that the plaintiffs were deprived of their license without due process of law, the individual defendants would still be entitled to qualified immunity. The plaintiffs' contentions are that the individual defendants failed to follow DHR's policies regarding monitoring of daycare centers in that they failed to provide consulting services and failed to give notice of complaints filed against them. They further contend that the individual defendants failed to follow the orders of the administrative hearing officer and failed to follow DHR's policy when defendants Gibson and Long released confidential documents to the media. These violations are violations of state procedures. They are not violations of procedural due process under the Constitution. The due process available to them under the Constitution is notice and opportunity to be heard on the deprivation. The deprivation at issue here is the deprivation of the license. If the defendants had failed to give notice to the plaintiffs of their intent to revoke the license or failed to give them a hearing, then a constitutional right would have been violated because the license is the protected property interest. The state procedures for monitoring a daycare facility or the other alleged violations are not constitutionally protected rights.
Thus, in applying Spruytte, the court finds that the violations of state regulations alleged by the plaintiffs against the individual defendants merely address "what process is due once a protected property interest has been found." The violations of DHR Minimum Standards and the Alabama Administrative Code and the refusal to follow the orders of the administrative hearing officer are only violations of the state process due them after they have acquired their daycare center license. They are not constitutionally protected rights. It is only if the defendants deprived the plaintiffs of notice and opportunity to be heard on the deprivation of the license, which is the heart of the procedural due process claim, that their qualified immunity defense would be defeated. See Bailey, 956 F.2d at 1125-1126 (holding that defendants were not entitled to qualified immunity under a procedural due process claim when they failed to give the plaintiffs a hearing and failed to give notice of his right to appeal).
Therefore, the court finds that the violations by the defendants of state regulations are "irrelevant to the merits of the underlying constitutional claim", i.e., the underlying constitutional claim being the deprivation of the plaintiffs' daycare center license. Accordingly, the individual defendants are entitled to qualified immunity because, under Davis v. Scherer, "[o]fficials sued for constitutional violations do not lose their qualified immunity merely because their conduct violates some statutory or administrative provision." Davis, 468 U.S. at 194, 104 S.Ct. at 3019.
IV. Pendent State Law Claims
In Counts 6 and 7 of the amendment to the complaint, the plaintiffs have alleged violations of the state law torts of outrage and slander. However, having dismissed the federal claims, the court is faced with the issue of whether it should assert jurisdiction over the remaining state law counts. In Carnegie-Mellon University v. Cohill, 484 U.S. 343,
Cohill, 484 U.S. at 350, 108 S.Ct. at 619. The Court further went on to state that "if the federal claims are dismissed before trial ... the state claims should be dismissed as well." Id. 484 U.S. at 350 n. 7, 108 S.Ct. at 619 n. 7. Though the Court recognized that this was not a mandatory rule.
In considering and weighing the factors set out in Cohill, the court finds that, in the interest of judicial economy, convenience, fairness and order, it would be best if the court declines to exercise jurisdiction over the state law claims. There being no remaining federal causes of action, the court finds that counts 7 and 8 are due to be dismissed without prejudice.
Accordingly, it is CONSIDERED, ORDERED, and ADJUDGED that the defendants' motion for summary judgment be and the same is hereby GRANTED and that JUDGMENT be and the same is hereby entered in favor of all defendants on counts 1 through 5 and that the plaintiffs take nothing by their said suit.
Further, and in the alternative, the court finds that the individual defendants are entitled to qualified immunity pursuant to Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984) on counts 1 through 5 and it is CONSIDERED, ORDERED, and ADJUDGED that summary judgment be and the same is hereby GRANTED on said alternate grounds and that JUDGMENT be and the same is hereby entered in favor of all individual defendants on counts 1 through 5 and that the plaintiffs take nothing by their said suit.
It is further CONSIDERED and ORDERED that the plaintiffs' motion to consider further evidence be and the same is hereby DENIED as untimely.
It is further CONSIDERED and ORDERED that the defendants' motion to strike the plaintiffs' more definite statement be and the same is hereby GRANTED.
As to counts 7 and 8, it is further CONSIDERED and ORDERED as follows:
1. That these counts be and the same are hereby DISMISSED WITHOUT PREJUDICE to the right of any party to move the court to reinstate these claims herein not adjudicated in or discharged by the state court (if, for example, the statute of limitations creates a bar to the claims being filed in state court, the plaintiff may move the court to reinstate these claims in this court);
2. That such reinstatement, if and when allowed, will cause the filing date of any claim so reinstated to relate back to the original filing date of this action;
3. That any motion for reinstatement must be filed by a party within 60 days after it is determined that said state causes of action are barred under an applicable state statute of limitations.