United States District Court, S.D. Georgia, Augusta Division
WESLEY L. LEWIS, Plaintiff,
THE CITY OF WADLEY, a municipal corporation organized under the laws of the State of Georgia; HAROLD MOORE, individually and as Mayor, City of Wadley; IZELL MACK, individually and as Councilman, City of Wadley; JOHN MAYE, individually and as Councilman, City of Wadley; KENDRICK MCBRIDE, individually and as Councilman, City of Wadley; ELIZABETH MOORE, individually and as Councilwoman, City of Wadley; and JERRY THOMAS, individually and as Councilman, City of Wadley, Defendants.
RANDAL HALL, CHIEF JUDGE UNITED STATE DISTRICT COURT.
before the Court is Defendants' motion for judgment on
the pleadings. The matter has been fully briefed and is ripe
for consideration. For the reasons set forth below,
Defendants' motion is GRANTED IN PART.
legal standards applicable to Federal Rule of Civil Procedure
12(c) motions for judgment on the pleadings and Rule 12(b)(6)
motions to dismiss are the same. Roma v. Outdoor
Creations, Inc. v. City of Cumming, Ga., 558 F.Supp.2d
1283, 1284 (N.D.Ga. 2008) ("A motion for judgment on the
pleadings is subject to the same standard as is a Rule 12(b)
(6) motion to dismiss.") A motion for judgment on the
pleadings, like a motion to dismiss, does not test whether
the plaintiff will ultimately prevail on the merits of the
case. Rather, it tests the legal sufficiency of the
complaint. Scheur v. Rhodes, 416 U.S. 232, 236
(1974). Therefore, the court must accept as true all facts
alleged in the complaint and construe all reasonable
inferences in the light most favorable to the plaintiff. See
Hoffman-Pugh v. Ramsey, 312 F.3d 1222, 1225
(11th Cir. 2002) . The court, however, need not
accept the complaint's legal conclusions as true, only
its well-pled facts. Ashcroft v. Iqbal, 556 U.S.
662, 677-79 (2009).
complaint also must "contain sufficient factual matter,
accepted as true, *to state a claim to relief that is
plausible on its face.'" Id. at 678 (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). The plaintiff is required to plead "factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Id. Although there is no probability
requirement at the pleading stage, "something beyond . .
. mere possibility . . . must be alleged."
Twombly, 550 U.S. at 556-57 (citing Durma
Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005)). When,
however, on the basis of a dispositive issue of law, no
construction of the factual allegations of the complaint will
support the cause of action, dismissal of the complaint is
appropriate. See Executive 100, Inc. v. Martin
Cnty., 922 F.2d 1536, 1539 (11thCir. 1991).
case arises out of an employment action taken against
Plaintiff Wesley L. Lewis, who was employed as the Chief of
Police of the City of Wadley, Georgia, from January 1, 2009
to March 9, 2016. (Compl., Doc. 1, Ex. 1, ¶ 4.) For
purposes of the present motion, the parties agree to the
following facts, which are drawn from Plaintiff's
complaint: On March 9, 2016, the Mayor of Wadley, Defendant
Harold Moore, terminated Plaintiff. Plaintiff exercised his
appeal right to Wadley's City Council. Upon conducting a
hearing on March 18, 2016, the City Council overturned the
Mayor's termination decision and voted to reinstate
Plaintiff. Subsequently, the Mayor vetoed that determination
and refused to allow Plaintiff to return to his post.
sued the City of Wadley, the Mayor, and the City Council
members, individually and in their official capacities as
council members. Plaintiff's claims include a claim for
deprivation of due process under 42 U.S.C. § 1983,
breach of an employment contract, and a petition for mandamus
1983 creates a federal remedy for the deprivation of federal
rights. Wideman v. Shallowford Community Hosp.,
Inc., 826 F.2d 1030, 1032 (11th Cir. 1987).
An actionable § 1983 claim requires proof of a
deprivation of rights, privileges or immunities secured by
the Constitution and laws of the United States and that the
deprivation was by a person or persons acting under color of
Id. Here, Plaintiff claims that his termination,
more specifically, the Mayor's refusal to recognize the
City Council's reinstatement of his position, denied him
due process "in clear violation of the laws of Georgia
and the Charter and Ordinances of the City of Wadley and in
violation of the clear Personnel Policies of the City of
Wadley." (Compl. ¶ 21.) Notably, Plaintiff does not
plead a violation of federal law. Nevertheless, for purposes
of this motion, the Court will liberally construe
Plaintiff's allegations to assert a claim for violation
of the Due Process Clause of the United States Constitution.
§ 1983 action may be brought for a violation of
procedural due process." Zinermon v. Burch, 494
U.S. 113, 125 (1990). "The protections of the Due
Process Clause apply to government deprivation of those
[benefits] of government employment in which the employee has
a constitutionally protected 'property'
interest." Gilbert v. Homar, 520 U.S. 924, 928
(1997) . The parties in this case do not dispute that
Plaintiff had a protected property interest in his position
as Chief of Police.
their motion for judgment on the pleadings, Defendants point
out that a procedural due process claim is not actionable
under § 1983 "unless and until the State fails to
provide due process." Zinermon, 494 U.S. at
126. That is, there is a procedural due process violation
only if the State fails to provide a means to remedy any
alleged deprivation. Foxy Lady, Inc. v. City of Atlanta,
Ga., 347 F.3d 1232, 1238 (11th Cir. 2003)
("[E]ven if a procedural deprivation exists during an
administrative hearing, such a claim will not be cognizable
under § 1983 if the state provides a means by which to
remedy the alleged deprivation."); Cotton v.
Jackson, 216 F.3d 1328, 1331 (11th Cir. 2000)
("It is the state's failure to provide adequate
procedures to remedy the otherwise procedurally flawed
deprivation of a protected interest that gives rise to a
federal procedural due process claim."); McKinney v.
Pate, 20 F.3d 1550, 1563 (11th Cir. 1994)
("[E]ven if [the plaintiff] suffered a procedural
deprivation ... at his termination hearing, he has
not suffered a violation of his procedural due
process rights unless and until the State refuses to make
available a means to remedy the deprivation." (emphasis
in original)). Moreover, "[i]f adequate state remedies
were available but the plaintiff failed to take advantage of
them, the plaintiff cannot rely on that failure to claim that
the state deprived him of procedural due process."
Cotton, 216 F.3d at 1331.
case, Defendants contend that there was an available remedy
to Plaintiff under Georgia law, citing O.C.G.A. § 5-4-1
(a), which gives public employees the right to petition the
state superior court for review of certain employment
decisions. The statute provides that a "writ of
certiorari shall lie for the correction of errors committed
by any inferior judicatory or any person exercising judicial
powers." Id. Because Plaintiff could have filed
a petition for a writ of certiorari in state court, so the
argument goes, he cannot state a procedural due process claim
under § 1983. The crux of Defendants' argument rests
upon a determination of whether Defendants' actions were
quasi-judicial or whether they were administrative. See
Cotton, 216 F.3d at 1332.
Georgia, "the basic distinction between an
administrative and a judicial act by officers other than
judges is that a quasi-judicial action, contrary to an
administrative function, 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; and that no one deprived of such rights is
bound by the action taken." South View Cemetary
Ass'n v. Hailey, 34 S.E.2d 863, 866 (Ga. 1945),
quoted in Cotton, 216 F.3d at 1332; and Mack II
v. City of Atlanta, 489 S.E.2d 357, 359 (Ga.Ct.App.
1997). Thus, the distinction generally turns ...