Opposition Brief — Punton v. City of Seattle

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A

NO. 86-1446

IN THE SUPREME COURT||

of the

UNITED STATES

Octobe: Term, 1986

DELMUS PUNTON,

Petitioner,

vs.

CITY OF SEATTLE,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION

DOUGLAS N. JEWETT

City Attorney

GORDON F. CRANDALL*

Senior Assistant

GORDON B. DAVIDSON

Assistant

Seattle Law Department

10th Fl.-Municipal Bldg.

Seattle, WA 98104

(206) 625-2402

* Counsel of Record

April 8, 1987

QUESTIONS PRESENTED

The petition for a writ of certiorari

filed by petitioner herein is in response

to a ruling by the United States Court of

Appeals for the Ninth Circuit that the

petitioner could not assert claims for

damages and attorney's fees pursuant to

42 U.S.C. § 1983 in federal court because

he had split his single cause of action

and had previously secured a judgment on

that cause of action in state court.

The questions raised by this petition

are the following:

hie Should this Court grant certi-

Orari where the facts of this case are

unlikely to recur and where ne ‘subetantial

federal question is presented?

2. Should this Court grant certiorari

to review petitioner's claim when the

atte

Ninth Circuit applied principles of res

judicata approved by this Court to reject

petitioner's claim, and where there are

no conflicts among the circuits or novel

questions of law?

3. Should this Court grant certiorari

where the Ninth Circuit properly found

that petitioner's claim was barred by

Washington law?

-iii-

TABLE OF CONTENTS

Questions Presented . ...«. + 6 © « « i

ere or COME « «0 «© # 6 & te te ce eo) CUR

rr rr raheem . «*’s «6 «© «© «© 8 AF

ee ee ee ee ee ee ee ee ee ee oe 1

Counterstatement of the Case .... .- 2

A. Administrative Proceedings ... 2

B. State Court Proceedings -

"Punton ;” e . o * * * o . * e 2 4

Federal Court Proceedings

"Punton | - . * 2 * * a a es e a 6

Reasons for Denying Certiorari .... 10

l.

Supreme Court Review Is Not

Appropriate For This Case Because

It Is Factually Unlikely to Recur

and No Substantial Federal Question

Is Presented ...« « « «© «© «© « « 12

The Ninth Circuit Applied the

Standard Adopted By This Court

for Determining Whether the

Judgment In Punton I Had a Claim

Precluding Effect On Punton's

Federal Court Action ....e«.. 16

Punton's Federal Court Claim Is

Not Allowable Under Washington

Law Because It Represents Part

of a Split Cause of Action and Was

Merged Into Punton's State Court

| a a a a ae a oe ee ee ee |

rs

Comelmeion « «© 6 & 2s oe Sa ee oe «688

Reeeebign 86 4s ek 8 6 6 ee ee se + HI

TABLE OF AUTHORITIES

Table of Cases

Clark v. Yosemite Community College

District, 785 F.2d 781 (9th Cir.

1986) - 2 — = os e om * oF J «a + * . iv 18

Cleveland Board of Education v.

Loudermill, 470 U.S. 532, 84 L.Ed.

2qd 494, 105 S.Ct. 1487

¢) |) re a ae ae ae ee ee Coe oe ee

Danielson v. Seattle, 45 Wn. App. 235,

724 P.2d 1115 (Div. I, 1986) .. 15, 16

Dept. of Labor & Industries v. City of

Kennewick, 31 Wn. App. 777, 644 P.2d

1196 (Div. III, 1982), rev'd on other

grounds, 99 Wn.2d 225, 661 P.2d 133

23 <>) Pee eee ee ee ee ee” ee er |

Hansen v. Seattle, 45 Wn. App. 214,

724 P.2d 371 (Div. I, 1986) . ... 14-15

In re Bouchat, 1l Wn. App. 369, 522

P.20d 1168 (Div. I, 1974) . « « « « e 21

McConnell v. Seattle, 44 Wn. App. 316,

722 P.2d 121 (Div. I, 1986) . 14, 15, 16

Memphis Community School District v.

Stachura, __ U.S. , 91 L.Ed.2d

249, 106 S.Ct. 2537 (1986) ..-«-.-- 20

Migra v. Warren City School District

Board of Education, 465 U.S. 75, 104

S.Ct. 892, 79 L.Ed.2d 56

(1984) . « « « « « 9, 16, 17, 18, 23, 24

-V=

Norco Construction, Inc. v. King County,

801 F.2d 1143 (9th Cir. 1986) .. 17,

Punton v. Seattle Public Safety Com'n.,

32 Wn. App. 959, 650 P.2d 1138 (Div.

I, 1982), review denied, 98 Wn.2d

1014 (1983) * + 2 7 ® * e * * 12, 1S,

Rains v. State, 100 Wn.2d 660, 674 P.2d

165 (1983) * 2 e * ~ 2 ° = a * a ° *

Sanwick v. Puget Sound Title Ins. Co.,

70 Wn.2d 438, 423 P.2d 624

(1967) * * e a e 2 *- o ye e * * * 21,

Scoggin v. Schrunk, 522 F.2d 436 (9th

Cir. 1975), cert. denied, 423 U.S.

1066, 46 L.Ed.2d 657, 96 S.Ct. 807

[lvees -s 64 ee 8 ae 2 ee ee Se

Seattle-First National Bank v. Kawachi,

91 Wn.2d 223, 588 P.2d 725 (1978) . .

Sprague v. Adams, 139 Wash. 510, 247

Pac. 960 (1926) . . « « « « « «© © 20,

Williams v. Seattle, 607 F. Supp. 714

(W.D. Wash. 1985) e © e e ee @ e@ 12-13,

Statutes

42 U.S.C. § 39833 <« @ «8 be De She 268

42 US Co § 1988 - * es * e € * - e . qe

22

43

22

22

8

-V i-

Other Authority

2 Orland, Washington Practice, § 361

(1972) . - . ” . _ © . . . . ” * . . 20

1 Restatement (Second) of Judgments,

§§ 24, 25 (1982) ~ . . . + . . a 21-22

Trautman, Claim and Issue Preclusion

in Washington, 60 Wash. L. Rev. 805

(1985) * = * — — . +. . . * . . . . _ 19

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

DELMUS PUNTON,

Petitioner,

vs.

CITY OF SEATTLE,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO. THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION

This brief is submitted by respondent

The City of Seattle in opposition to the

petition of Delmus Punton for a writ of

certiorari to the United States Court of

Appeals for the Ninth Circuit.

COUNTERSTATEMENT OF THE CASE

A. Administrative Proceedings:

The petitioner, Delmus Punton, is an

officer in the Seattle, Washington Police

Department. He was subjected to progres-

sive discipline for a variety of conduct

infractions culminating in a five-day

suspension for using information obtained

under police authority for personal

purposes. (Petition for Certiorari

Appendix G-4.)

Thereafter Punton was found to have

committed four more offenses:

(1) Allowing unauthorized civilians

to ride in his patrol car;

(2) Disobeying a supervisor's direct

order;

(3) Broadcasting a tape of drunken

Japanese conversation and hysterical

laughter over his patrol car public

address system while his car was parked

on the sidewalk outside a liquor store

2

in an area with a predominantly Asian

population; and

(4) Using unnecessary and unreason-

able force in removing Phillip Williams

from inside a hospital, where Williams

had sought treatment for a possible

heart attack. Williams, a passenger in

a car that had been observed committing

traffic infractions, was followed by

Punton into the hospital and ordered to

return to the car. When Williams

protested, saying he was having a heart

attack, Punton gripped him in a hammerlock,

threatened to break his arm if he did not

comply, and forced him outside to discuss

the infractions.

Through an internal police department

investigation, Punton was given notice and

the details of these four allegations as

well as an opportunity to explain his con-

duct. He also received a full evidentiary

hearing by a police discipline panel after

his employment was terminated.

Punton appealed his discharge to the

Seattle Public Safety Civil Service

Commission, arguing that the Seattle

Police Department's Manual of Rules and

Procedures guaranteed him a full eviden-

tiary hearing before he could be fired

and that its omission violated his due

process rights. The Commission upheld

Punton's discharge, finding all of the

accusations supported by substantial

evidence, and concluding that the

"discharge of Delmus Punton from the

Seattle Police Department was done in

good faith, and for cause." (Petition

for Certiorari Appendix G-5.)

B. State Court Proceedings - "Punton I":

The administrative decision was

reviewed by the King County Superior

Court. In that proceeding Punton again

argued that his discharge from employment

prior to a full evidentiary hearing was a

deprivation of due process under the

United States Constitution. The state

trial court judge found that each of the

grounds on which the Police Chief based

his decision to discharge Punton was

supported by substantial evidence.

(Petition for Certiorari Appendix H-6.)

The trial court held, however, that the

City's failure to accord Punton a full

evidentiary hearing as provided by the

Seattle Police Department's Manual and

the applicable collective bargaining

agreement, before subjecting Punton to

discipline, violated his constitutional

rights to due process of law. (Petition

for Certiorari Appendix H-9 through -1ll.)

The trial court reinstated Punton to the

Seattle Police Department effective

September 22, 1980; awarded him back pay

from September 22, 1980, through the

date of the trial court's order plus

prejudgment interest at 8 percent;

ordered that the City's personnel

records be corrected to reflect the

court's decision; and awarded Punton

attorney's fees of $15,000. (Petition

for Certiorari Appendix I.)

The Washington State Court of Appeals

affirmed the trial court's decision

regarding Punton's constitutional rights.

It held that Punton's discharge prior to

a full evidentiary hearing pursuant to

the provisions of the Police Department's

Manual constituted an infringement of a

substantive "property" interest and a

prima facie deprivation of due process.

Review was denied by the Washington

State Supreme Court. (Petition for

Certiorari Appendix K.)

C. Federal court proceedings - "Punton II":

Between the dates that the King County

Superior Court and the Washington State

Court of Appeals respectively ruled on

Punton's due process claim, the petitioner

started the separate proceedings below.

His complaint in federal district court

alleged that, because he was

"terminated without prior notice

or hearing, his property interests

were denied without due process

having been afforded as required

by the United States Constitution

and 43 U.S.C. § 1983."

(Appendix A, infra.) Punton's complaint

requested, as relief, reinstatement

effective September 22, 1980; damages;

costs, disbursements and attorney's fees

pursuant to 42 U.S.C. § 1988; and such

other relief as the court considered

appropriate.

After the Washington State Supreme

Court denied both the City's petition for

review of the State Court of Appeals

decision on the due process issue and

Punton's petition on the denial of attor-

ney's fees, Punton moved for summary

judgment in the federal court action.

The City responded with a motion requesting

dismissal on res judicata grounds. The

district court ruled in Punton's favor

and against the City, holding that res

judicata principles did not bar Punton's

second action but, rather, established

the City's liability for damages. A

judgment was entered awarding Punton

$150,000 after a jury returned a verdict

in that amount. Punton then petitioned

the court for $509,993.25 in attorney's

fees, based on claimed fees of $78,460.50

times a requested multiplier of 6.50.

The district court awarded him only

$15,000.

The City appealed the district court's

judgment, assigning error to the denial

of its motion for dismissal on res judicata

grounds. Punton cross-appealed the

district court's refusal to award the

full amount of attorney's fees requested

pursuant to 42 U.S.C. § 1988.

A divided panel of the Ninth Circuit

reversed the district court. (Petition

for Certiorari Appendix B.) The majority

acknowledged that, in cases arising under

42 U.S.C. § 1983,

"a prior state court judgment has

the same preclusive effect that

the judgment would have in the

courts of the state in which it

was rendered..."

citing Migra v. Warren City School

District Board of Education, 465 U.S.

75, 83, 104 S.Ct. 892, 897, 79 L.Ed.2d

56 (1984). (Petition for Certiorari

Appendix B-7.) The Ninth Circuit then

determined that Washington law bars a

second litigation of a claim that has

been actually litigated in an earlier

proceeding. (Petition for Certiorari

Appendix B-8.) It found Punton had a

single claim or cause of action for a

deprivation of due process.

After noting that Punton received

through state court proceedings everything

he lost, the Ninth Circuit concluded

that Punton's decision to litigate his

claim first through state proceedings

and then in federal court constituted an

impermissible splitting of his cause of

action under Washington law. (Petition

for Certiorari Appendix B-15.) The

Ninth Circuit reversed the district

court and dismissed Punton's cross-appeal

as moot. Punton then filed his petition

for certiorari with this Court.

REASONS FOR DENYING CERTIORARI

Were the petitioner's due process

claim heard initially, today, he would

receive no relief whatsoever. This

Court's decision in Cleveland Board of

Education v. Loudermill, 470 U.S. 532,

84 L.Ed.2d 494, 105 S.Ct. 1487 (1985),

settled that substantive property rights

cannot be defined by the procedures pro-

vided for their deprivation. Loudermill

afj-

emasculated the Washington state deci-

sion giving him relief. In considering

the federal claim, the Ninth Circuit

followed this Court's instructions to

apply Washington law to determine the

claim preclusive effect of the petitioner's

state court judgment on his federal

lawsuit under 42 U.S.C. § 1983. By

Suing the respondent in both state and

federal courts for the same violation

of due process, the petitioner attempted

to split a single cause of action.

Alternatively, when he secured relief

through the state court, the petitioner's

federal claim became merged with the

state court judgment. By reversing the

federal district court, the Ninth Circuit

produced the right result. Accordingly,

Punton's petition should be denied.

1. Supreme Court review is not appropriate

for this case because it is factually

unlikely to recur and no substantial federal

guestion is presented.

In Punton v. Seattle Public Safety

Com'n., 32 Wn. App. 959, 964-65, 650 P.2d

1138 (Div. I, 1982), review denied, 98

Wn.2d 1014 (1983), “Punton I", the

Washington State Court of Appeals

concluded that the Seattle Police

Department's Manual granted Punton a

substantive right to a full evidentiary

hearing regarding potential discipline

against him. It reasoned that because

the Manual established "elements of a

substantive 'property' interest...", a

failure to follow the Manual's procedures

gave rise to a prima facie deprivation of

due process. (Petition for Certiorari

Appendix J-20 & -21.)

The district court in Williams v.

Seattle, 607 F.Supp. 714 (W.D. Wash.

1985), characterized that analysis as

"misguided", citing the distinction

between substance and procedure in the

context of Due Process Clause guarantees

that this Court emphasized in Cleveland

Board of Education v. Loudermill, 470

U.S. 532, 84 L.Ed.2d 494, 503, 105 S.Ct.

1487, 1493 (1985). It held that Williams,

another Seattle police officer subjected

to discipline in a manner inconsistent

with the Manual's requirements,

"was constitutionally entitled

only to notice of the charge,

an explanation of the evidence

against him, and an opportunity

to respond prior to the Chief's

disciplinary decision."

Williams, 607 F.Supp. at 721. (Emphasis

added.) Ina flat rejection of Punton I,

Williams concluded that the City's failure

to follow the identical Manual and collec-

tive bargaining agreement provisions did

not constitute a prima facie deprivation

of due process.

-14- |

Since Williams and this Court's

determination in Loudermill, there has

been a rapid retrogression from the

reasoning of Punton I and a consistent

effort by various panels of the State

Court of Appeals to distinguish it away.

In McConnell v. Seattle, 44 Wn. App.

316, 325, 722 P.2d 121 (Div. I, 1986),

review denied, 107 Wn.2d 1007 (1986),

the Washington State Court of Appeals

concluded that neither the Manual nor the

collective bargaining agreement provides

a right to a full evidentiary hearing to

a police officer charged or likely to be

charged with a felony. McConnell held

that a Seattle po’‘ce officer's consti-

tutional rights do not include a full

evidentiary hearing as provided by the

Manual but only the minimal due process

described in Loudermill, supra.

In Hansen v. Seattle, 45 Wn. App.

214, 221-22, 724 P.2d 371 (Div. I,

eB

_—~—

1986), the same court concluded that

Punton I did not address police officer's

rights under the collective bargaining

agreement. It held that, because no

full evidentiary hearing is guaranteed

by that agreement to officers subject to

discipline, the failure of a terminated

officer to resort to contractual remedies

or to seek administrative relief precluded

judicial review of his termination.

In Danielson v. Seattle, 45 Wn. App.

235, 242-44, 724 P.2d 1115 (Div. I, 1986),

certiorari granted, 107 Wn.2d 1013 (1986),

the Court of Appeals reached the same

conclusion as the McConnell court.

Finding support in the Williams criticism

and other federal decisions, the court

in Danielson flatly declared that the

City's failure to comply with the Manual's

procedures was neither a violation of

constitutional standards nor an error of

constitutional magnitude.

enemie

Were the facts in Punton to be

repeated, today, no due process depriva-

tion would be found. lLoudermill,

Williams, and Danielson have provided

clear directions regarding pertinent

substantive and procedural requirements.

No substantial federal question remains

for determination by this Court.

2. The Ninth Circuit applied the standard

adopted by this Court for determining

whether the judgment in Punton I had a

claim precluding effect on Punton's

federal court action.

In Migra v. Warren City School District

Board of Education, 465 U.S. 75, 104

S.Ct. 892, 79 L.Ed.2d 56 (1984), this

Court held that a federal district court

hearing an action arising under 42 U.S.C.

§ 1983 should apply the law of the forum

state when deciding matters of claim

preclusion. This was precisely what the

Ninth Circuit did when it ruled that

ee

petitioner's federal lawsuit was barred.

(Petition for Certiorari Appendix B-7

& -22.)

Contrary to petitioner's assertions,

this holding does not constitute a

departure from the decisions of this

Court, nor does the holding conflict

with any rule adopted in other circuits.

The Ninth Circuit was guided, in part,

by its earlier holding in Clark v.

Yosemite Community College District, 785

F.2d 781 (9th Cir. 1986). Punton's

petition admits that the holding in Migra

is the basis for the Ninth Circuit's

decisions in Clark and Norco Construction,

Inc. v. King County, 801 F.2d 1143, 1146

(9th Cir. 1986). (Petition for Certiorari

10.) The Ninth Circuit's reference to

Seattle-First National Bank v. Kawachi,

91 Wn.2d 223, 588 P.2d 725 (1978), and

its characterization of Punton's litiga-

tion strategy as an impermissible

il

splitting of a single cause of action

demonstrate that it focused on Washington

law in applying Migra.

Certiorari is not warranted in light

of the fact that the Ninth Circuit applied

Migra in the instant case, just as it

did in Clark and in Norco, supra. This

case does not demonstrate disregard for

Migra or a conflict between circuit

courts of appeal.

3. Punton's federal court claim is not

allowable under Washington law because

it represents part of a split cause of

action and was merged into Punton's

state court judgment.

"Claim preclusion, more tradi-

tionally called res judicata, is

a doctrine designed to curtail

the relitigation of a claim or

cause of action. For the doc-

trine to apply, there must be

substantial identity in the

successive proceedings. More =

particularly, the Washington

Supreme Court has stated for

almost seven decades that a

judgment has claim preclusive

effect only if the successive

caiencemnr emeaeainieten eee

proceedings are identical in

four respects: (1) subject

matter; (2) cause of action;

(3) persons and parties; and

(4) the quality of the persons

for or against whom the claim

is made."

Trautman, Claim and Issue Preclusion in

Washington, 60 Wash. L. Rev. 805, 812

(1985). (Footnote omitted.)

The petitioner's motion for summary

judgment before the federal district

court admitted that his state court and

federal court proceedings were identical

in each of these respects. On page 4 of

his motion, Punton confessed that

"the subject matter in both

the state and federal cases

involves the same facts, the

same persons, the same arguments,

the same case law, the same

constitutional amendments, the

same everything. Even the

counsel are the same. The only

difference is that plaintiff

sought reinstatement in the

state court, but seeks damages

in the federal court."

(Clerk's Paper 25 submitted to the Ninth

Circuit Court of Appeals.) That

=30-

"difference" was not a sufficient basis

for allowing Punton's federal lawsuit to

proceed to judgment.

The petitioner had only a single

claim or cause of action for a depriva-

tion of due process, "a species of tort

liability. . . ." Memphis Community

School District v. Stachura, U.S.

, 91 L.Ed.2d 249, 258, 106 S.Ct.

2537 (1986). Under Washington law, a

single tort can be the subject of only

one lawsuit. 2 Orland, Washington

Practice, § 361 p. 402 (1972), citing

Sprague v. Adams, 139 Wash. 510, 247

Pac. 960 (1926). Under Sprague, prop-

erty damages and damages for personal

injuries arising from a single tort

cannot be made the subjects of separate

lawsuits against the same defendant.

Punton was not precluded from seeking,

in a single lawsuit, relief for all of

the damages resulting from his termination.

a,

It is state policy that all litigation

between the same parties, arising out of

the same transaction, be determined in

one action to avoid a multiplicity of

lawsuits. In Re Bouchat, 1l Wn. App.

369, 522 P.2d 1168 (Div. I, 1974); Dept.

of Labor & Industries v. City of Kennewick,

31 Wn. App. 777, 644 P.2d 1196 (Div. III,

1982) rev'd on other grounds, 99 Wn.2d

225, 661 P.2d 133 (1983).

Washington courts are required to

dismiss subsequent actions where relief

could and should have been sought ina

prior action. Sanwick v. Puget Sound

Title Ins. Co., 70 Wn.2d 438, 423 P.2d

624 (1967). The Restatement (Second) of

Judgments, §§ 24 and 25 succinctly state

the rule applied:

"§ 24 Dimensions of "Claim"

for Purpose of Merger or Bar

-- General Rule Concerning

"Splitting"

(1) When a valid and final

judgment rendered in an action

extinguishes the plaintiff's

essai saasiasisiiisaiiiiaiiaimaiiiiaiaiiaal

Pay ie

claim pursuant to the rules of

merger or bar (see §§ 18, 19),

the claim extinguished includes

all rights of the plaintiff to |

remedies ajyainst the defendant |

with respect to all or any part

of the transaction, or series

of connected transactions, out

of which the action arose.

"§ 25 Exemplifications of

General Rule -Concerning

Splitting

The rule of § 24 applies to

extinguish a claim by the

plaintiff against the defendant

even though the plaintiff is

prepared in the second action:

(1) To present evidence or

grounds or theories of the case

not presented in the first

action, or

(2) To seek remedies or forms

of relief not demanded in the

first action."

Section 1983 actions can be barred

by res judicata principles. Rains v.

State, 100 Wn.2d 660, 674 P.2d 165

(1983); Scoggin v. Schrunk, 522 F.2d

436, 437 (9th Cir. 1975), cert. denied,

423 U.S. 1066, 46 L.Ed.2d 657, 96 S.Ct.

807 (1976).

By attempting to secure reinstatement,

monetary damages and attorney's fees

through federal proceedings at the same

time he was engaged in state proceedings

to regain his job and obtain back wages

and attorney's fees, Punton split his

Single cause of action. The judgment

entered by the state court should have

had a preclusive effect on his federal

court claims, consistent with established

Washington law. Sanwick and Sprague,

both supra. The Ninth Circuit applied

Migra as it should have, correctly

interpreting Washington claim preclusion

law as a prohibition against Punton's

federal lawsuit.

CONCLUSION

The district court should have denied

the petitioner's motion for summary

judgment and granted the City's motion

to dismiss on res judicata grounds simply

on the basis of the admissions in Punton's

motion and the principle under Washington

ee ee

seriall

=$é@u

law that remedies available for a single

claim or cause of action cannot be

sought in separate lawsuits. The City

has been required to reinstate an officer

with back pay in spite of having estab-

lished solid grounds for his termination.

Monetary damages and attorney's fees are

not appropriate in this case. The Ninth

Circuit's decision corrected the district

court's error in this case and is the

right result, and a fair result. It

follows this Court's instructions in

Migra, demonstrates no conflict with

another circuit, and presents no substan-

tial federal question. For these reasons,

respondent The City of Seattle respect-

fully requests this Court to deny Punton's

petition for a writ of certiorari.

Respectfully submitted this 8th day

of April, 1987.

DOUGLAS N. JEWETT

City Attorney

Ye vem 7. Cnet £?

-

GORDON F. CRANDALL*

GORDON B. DAVIDSON

sistant

* Counsel of Record

APPENDIX A

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

DELMUS PUNTON,

Plaintiff, NO. C82-397

COMPLAINT AND JURY

DEMAND

VSe

CITY OF SEATTLE,

Defendant.

ee ee eee eee eee ee”

I. PARTIES

1.1 Delmus Punton is a citizen

. residing in the Western District of

Washington.

1.2 The City of Seattle is a

municipal corporation incorporated under

the laws of the State of Washington and

located within the Western District of

Washington.

II. JURISDICTION

2.1 The court has jurisdiction over

the parties pursuant to 28 USC §1331l

because this case arises under the

United States Constitution and the laws

of the United States; viz., 42 USC §1983

and 42 USC §1988.

III. ALLEGATIONS OF FACT

3.1 On September 22, 1980, the City

of Seattle summarily terminated the

employment of plaintiff, a permanent

employee with eleven years of service as

a Seattle police officer.

3.2 Delmus Punton was given no

prior notice of discharge nor was he

given an opportunity to be heard prior

co termination.

3-3 Pursuant to the applicable

civil service rules, Delmus Punton has a

legitimate expectation of continued

employment with the City of Seattle

because his employment could only be

terminated for cause. The City of

Seattle concedes that Delmus Punton

possessed a property interest in his

continued employment with the City of

Seattle.

IV. CLAIMS PRESENTED

4.1 Because Delmus Punton was

terminated without prior notice or

hearing, his property interests were

denied without due process having been

afforded as required by the United

States Constitution and 43 USC §1983.

4.2 Delmus Punton has suffered

hardship, both mental and physical, as a —

result of his wrongful discharge.

V. RELIEF REQUESTED

Plaintiff requests the court to

_ grant the following relief:

5.1 Reinstatement, effective

September 22, 1980.

5.2 Damages in an amount to be

determined at the time of trial.

5.3 Cost, disbursements and

attorney's fees pursuant to 42 USC

§1988.

5.4 Such other and further relief

as the court may consider appropriate

following a full trial.

|

VI. JURY DEMAND

6.1 Pursuant to FRCP 38 and Local

Rules, W.D. Wash. 38(b), plaintiff

demands a jury on the issue of damages

as identified in paragraph 4.2 above.

DATED this 8th day of April, 1982.

CLINTON, FLECK, GLEIN & LINVILLE

By:_/s/

Lawrence B. Linville

Attorneys for plaintiff