Opposition Brief — Johnson v. City of Shelby, 135 S. Ct. 346 (2014) (No. 13-1318)

RECORD ‘ae sass Ye) ngs

AND No. 13-1318 tes

BRIEFS a it

In The Ege “Ss a a er

Supreme Court of the Anited States

Sd

TRACEY L. JOHNSON AND DAVID JAMES, JR.,

Petitioners,

vB.

CITY OF SHELBY, MISSISSIPPI,

Respondent.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

+

BRIEF IN OPPOSITION TO

PETITION FOR CERTIORARI

¢

GARY E. FRIEDMAN

PHELPS DUNBAR LLP

4270 1-55 North

Jackson, Mississippi 39211

Telephone: 601-352-2300

Facsimile: 601-360-9777

Email: friedmag@phelps.com

Counsel for Respondent

COCKLE LEGAL BRIEFS (800) 225-6964

WWW .COCKLELEGALBRIEFS.COM

Library of Congress

Law Library

i

QUESTION PRESENTED

Whether a plaintiff who pleads a claim directly

under the Fourteenth Amendment is entitled to have

it construed as a claim for damages brought pursuant

to 42 U.S.C. § 1983, despite failing to invoke that

statute in his complaint.

ii

PARTIES TO THE PROCEEDING

Petitioners are Tracey L. Johnson and David

James, Jr. Respondent is the City of Shelby, Missis-

sippi.

ill

TABLE OF CONTENTS

Page

QUESTION PRESENTED......................cceceeeeeeee i

PARTIES TO THE PROCEEDING ..................... ii

TABLE OF CONTENTS ..................cc0ceeecseeceeeeeees ili

TABLE OF AUTHORITIES ................cccceeeeeeseeeees iv

TIENT sincsschctsnanndndeanticiabdasmusesaninacoseiusiinint 1

STATEMENT OF THE CASE......................2..0000. 3

A. Factual Background .....................0..:ecce0eee 3

ef _, FEE OEE 5

REASONS FOR DENYING THE WRIT.............. 6

I. The Fifth Circuit Correctly Hei That

Courts And Opposing Parties Are Not

Required To Infer A § 1983 Claim For

Damages When A Plaintiff Elects To Sue

Directly Under The Fourteenth Amend-

© RRR ee 8 AS ene Me ae bP AS ST ee aC ser 6

I sseteecacleomendemabemenineaiaienmes 13

iv

TABLE OF AUTHORITIES

Page

CASES

Anderson v. Creighton, 483 U.S. 635 (1987)................ 8

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ......0...... ee 10

Bell Atlantic Corp. v. Twombly, 550 U.S. 544

—____, ENTER Aone ener Pe Twn ee 1, 10,12

Camreta v. Greene, 131 S.Ct. 2020 (2011) ..........0000000.. 9

Civil Rights Cases, 109 U.S. 3 (1883) ......... ee 7

Collins v. City of Harker Heights, Tex., 503 U.S.

I eit icine ital ah Tine iisialiad edict 8

Conley v. Gibson, 355 U.S. 41 (1957) .0.. eee 1

Connick v. Thompson, 131 S.Ct. 1350 (2011).............. 8

Davis v. Commonwealth Election Comm., 2014

WL 2111065 (D. N. Mar. I. 2014)..........00000. eee 7

Ex parte Young, 209 U.S. 123 (1908)................. ee eeeeeees 7

Farmer v. Ramsay, 41 F. Supp. 2d 587 (D. Md.

SSsaarair i iasicisciclcueachcueisbs kia beseacaiiacdanesenicerhaeaionniieialaninidias 9

Felton v. Polles, 315 F.3d 470 (5th Cir. 2002).............. 2

Gomez v. Toledo, 446 U.S. 635 (1980).................. 10, 11

Harlow v. Fitzgerald, 457 U.S. 800 (1982) ...........00.... 9

Hearth, Inc. v. Department of Public Welfare,

G17 F.2d SEL (Gti Cir. 19B0) .....cccccecccesecscccsccceseeeses 10

Jett v. Dallas Independent School District, 491

ey WUE WUE icteiiets desitadcsksnineesuatiansindiidaniadibaumtnbibaunte 7,8

Vv

TABLE OF AUTHORITIES — Continued

Page

Leatherman v. Tarrant County Narcotics Intel-

ligence and Coordination Unit, 507 U.S. 163

rin iisstseeceslonetsinchaaeadetltaiashaiaptalhbebaaridiidusedintadianamaasdeiaaamnaheiaaiasiles 10

Lofton v. City of West Point, Miss., 2012 WL

BEE CEs SUI, TIE Peicricccccnccenciecnssnssntncasestones 11

Magana v. Com. of the Northern Mariana

Islands, 107 F.3d 1436 (9th Cir. 1997) .........0.0...... 8

Pembaur v. Cincinnati, 475 U.S. 469 (1986) ............... 8

Robinson v. Kansas, 295 F.3d 1183 (10th Cir.

ini eiieladheceabatiaitadaaeidalnetiepdivneibliiniitindbabah 7

Rogers v. Miller, 57 F.3d 986 (11th Cir. 1995).............. g

Rubenstein v. Benedictine Hosp., 790 F. Supp.

NE tar EI iieliscaitinincistennntninihicininnendedibaeilesedibaneidi 7

FEDERAL STATUTES

Oe Oe EE ciiillinicsasinencieninsiannnpianisnnnnienseeinnetions passim

RULES

a I I ONL ickinleniccinsniechcidesiaancsidpaipuibinincnninneaiiioed passim

Rf EEE es OSC ME TET KORTE 5

CONSTITUTIONAL PROVISIONS

RES EU: SUNN SIERO cnternousviictsedicnsseneeicoonsniad passim

|

“

INTRODUCTION

This is not, as the Petitioners contend, a case

about a technical failure to cite a relevant statute.

Rather, it is a case about two different sources of law

— the Fourteenth Amendment and 42 U.S.C. § 1983 —

that give rise to two different types of claims. Claims

for injunctive or declaratory relief from an uncon-

stitutional action may be brought directly under the

Fourteenth Amendment. By contrast, claims for

money damages stemming from Fourteenth Amend-

ment due process violations must be brought via the

statutory vehicle of 42 U.S.C. § 1983.

Petitioners chose to plead their claim directly

under the Fourteenth Amendment. App. 21. They

alleged they were terminated without due process.

App. 24-25. Among their multiple claims and request-

ed remedies was a request for injunctive relief in the

form of “reinstatement.” App. 26. Thus, Petitioners

arguably satisfied Rule 8(aX2) of the Federal Rules of

Civil Procedure to the extent they sought injunctive

relief directly under the Fourteenth Amendment.

Petitioners did not, however, invoke § 1983 or

plead any facts showing that any due process viola-

tion had caused them monetary damages. App. 20-27.

Thus, to the extent they sought money damages for a

due process violation, Petitioners did not give “fair

notice of what the [ ... ] claim is and the grounds

upon which it rests.” Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 555 (2007), quoting Conley v. Gibson,

355 U.S. 41, 47 (1957). Later, in their summary

2

judgment briefs, Petitioners conceded they really

were seeking money damages available under § 1983,

after all. The district court dismissed that claim, as it

had never been raised in the complaint. App. 12-13.

Petitioners’ argument rests on the assumption

that these two types of claims are interchangeable,

such that — whenever a party alleges a Fourteenth

Amendment due process violation — opposing parties

and courts must presume he means to bring a claim

for money damages and read into the complaint a

claim under 42 U.S.C. § 1983 if one is not pled. Below,

the Fifth Circuit rightly rejected this notion that

invoking § 1983 is a “mere pleading formality.” App.

12, citing Felton v. Polles, 315 F.3d 470, 482 (5th Cir.

2002).

Pleading § 1983 informs public entities — and

more importantly, individual public officials — that

money damages are being sought from them, rather

than just injunctive relief. This notice is critical, as

money damage awards against individual officials

can be financially devastating, and may spur them to

seek their own counsel or to defend the case more

aggressively than if only an injunction were at stake.

Likewise, pleading § 1983 notifies the parties that

fundamentally different standards of liability apply —

specifically, that respondeat superior liability is not

available and that individual defendants may invoke

qualified immunity. Pleading directly under the

Fourteenth Amendment, as the Petitioners did here,

provides notice of none of these things.

3

There is no split among the circuits on this

question, nor is there any other compelling reason to

grant a writ of certiorari. Ultimately, this is a fact-

bound, highly idiosyncratic case about an experienced

civil rights lawyer who pled a claim directly under

the Fourteenth Amendment when he meant to plead

a claim for money damages under 42 U.S.C. § 1983.

The plaintiff is the master of his complaint, so neither

courts nor defendants should be obliged to guess as to

what the plaintiff’s lawyer subjectively intended. The

Fifth Circuit applied this straightforward rule cor-

rectly, and thus the writ should be denied.

¢

STATEMENT OF THE CASE

A. Factual Background

Although it is largely immaterial to the question

presented in the petition, it is worth noting briefly

that the Petitioners’ account of the reasons for their

termination is disputed by the Respondent.

Petitioners Tracey Johnson and David James, as

police officers for the City of Shelby, Mississippi,

made a practice of ignoring police procedure and the

civil rights of residents. Shortly after James was

hired, the City began receiving complaints that he

was “profiling,” targeting, and harassing residents for

no reason. In April 2009, Petitioners were dispatched

in response to a distress call at an apartment complex

in Shelby. The City received complaints that the

Petitioners were harassing residents who were not

4

the subject of the call. Residents of the apartment

complex ultimately filed a petition alleging they had

been “harassed and violated” by the Petitioners.

In May 2009, the City received a letter complain-

ing that Officer James had entered the local housing

authority and accused an employee, Mary Young, of

“housing drug dealers” without any evidence. It

appears this visit was an attempt to retaliate against

Young, who days earlier had met with police officials

to complain about James’s harassing behavior.

To make a long story suitably brief, the City’s

Board of Aldermen considered a motion to terminate

the Petitioners in July 2009, but it failed on a 2-2

vote. Shortly after the vote, the vehicles of the two

aldermen who voted to terminate were burned. Two

former City of Shelby police officers were arrested

and charged with the crime. Then, in August 2009,

the Petitioners were suspended after trying to have

the victim of an auto theft lure the alleged thief back

into the city limits to be arrested.

In September 2009, the Board again considered a

motion to terminate the Petitioners’ employment.

This time, the motion carried by a vote of 3-2. On

September 3rd, the city attorney advised the Peti-

tioners of their termination. Officer James indicated

he would appeal the decision. In October 2009, a

grievance hearing was held and the Board upheld his

termination.

B. Procedural History

The procedural history provided by Petitioners is

largely accurate. Some important details are omitted

or misstated, however.

First, this was not a case in which a plaintiff

omitted a necessary pleading then promptly sought to

amend his complaint and add it. Instead, Petitioners’

first and only request to amend their complaint to

incorporate 42 U.S.C. § 1983 came via a motion for

post-judgment relief under Rule 59(e) of the Federal

Rules of Civil Procedure nearly thirty days after

summery judgment was entered. As the Fifth Circuit

noted, Petitioners “waited unti] they lost on one

theory and then sought to upset the finality of the

district court’s judgment by introducing a new theo-

ry.” App. 7. The Fifth Circuit held it was not an abuse

of discretion to deny this belated request. Jd.

Second, Petitioners assert that the district court

“granted summary judgment on the sole ground that

Petitioners had failed to cite in their complaint the

statute (42 U.S.C. § 1983), which authorizes the

cause of action.” Pet. 5, citing App. 12-13. That is not

what the district court held. Petitioners steadfastly

refuse to accept that there is such a thing as a claim

brought directly under the Fourteenth Amendment,

but the district court did not adopt that fiction. In-

stead, the Court held that “a claimant may not recov-

er from state and local officials for a constitutional

violation through means of an action directly under

the Fourteenth Amendment.” App. 12.

6

In short, the district court correctly construed

Petitioners’ complaint as raising a direct action under

the Fourteenth Amendment. After all, Petitioners’

complaint did request injunctive relief in the form of

“reinstatement” and did not allege facts showing

monetary injury. App. 24-26. However, Petitioners

conceded in their summary judgment brief that they

actually were seeking money damages under § 1983,

not the declaratory or injunctive relief available

directly under the Fourteenth Amendment. The

district court rightly dismissed that claim, as it was

not pled in the complaint.

As discussed below, pleading under 42 U.S.C.

§ 1983 provides notice that a claimant seeks to recov-

er money damages from a government defendant — or,

as here, an individual public official. Because no such

notice was provided in the complaint, the district

court followed Fifth Circuit precedent and dismissed

the Fourteenth Amendment claim.

S

REASONS FOR DENYING THE WRIT

I. The Fifth Circuit Correctly Held That

Courts And Opposing Parties Are Not Re-

quired To Infer A § 1983 Claim For Dam-

ages When A Plaintiff Elects To Sue

Directly Under The Fourteenth Amend-

ment.

Petitioners’ arguments all hang on the assump-

tion that a complaint alleging a violation of the Due

7

Process Clause of the Fourteenth Amendment must

necessarily also be a claim for money damages under

42 U.S.C. § 1983. That simply is wrong.

Claims for injunctive or declaratory relief from

an unconstitutional action or law may be brought

directly under the Fourteenth Amendment. This

Court has recognized the availability of such claims,

noting that the Fourteenth Amendment “is undoubt-

edly self-executing without any ancillary legislation.”

Civil Rights Cases, 109 U.S. 3, 20 (1883); see also Ex

parte Young, 209 U.S. 123 (1908) (approving issuance

of injunctive relief claimed directly under Fourteenth

Amendment). Further, in Jett v. Dallas Independent

School District, 491 U.S. 701 (1989), this Court re-

peatedly observed that § 1983 provides the exclusive

remedy where a claim is for “damages,” thus implicit-

ly recognizing what it previously held: that non-

monetary relief is available directly under the Four-

teenth Amendment.

As one district court put it, the enactment of

§ 1983 “did not strip citizens of standing to bring

direct challenges under the Fourteenth Amendment.”

Davis v. Commonwealth Election Comm., 2014 WL

2111065 at *7 (D. N. Mar. I. 2014). Other courts have

reached the same conclusion. See, e.g., Robinson v.

Kansas, 295 F.3d 1183, 1191 (10th Cir. 2002) (party

“may seek prospective injunctive relief against state

officials” directly under Fourteenth Amendment);

Rubenstein v. Benedictine Hosp., 790 F. Supp. 396,

407 (N.D.N.Y. 1992) (plaintiffs adequately pled due

8

process claim for “declaratory and injunctive relief

directly under the Fourteenth Amendment”).

Rather than serve as the “implementing legisla-

tion” for the Due Process Clause of the Fourteenth

Amendment, 42 U.S.C. § 1983 creates a separate

cause of action for damages, which are not available

via a direct constitutional claim. See, e.g., Jett, 491

U.S. at 704-05, 714; see also Magana v. Com. of the

Northern Mariana Islands, 107 F.3d 1436 (9th Cir.

1997) (“action for money damages” may not be

brought directly under Fourteenth Amendment).

Because the claim and the stakes are fundamen-

tally different, this Court has recognized that the

standards for liability under § 1983 are likewise

different. For instance, there is no respondeat superi-

or liability under § 1983. See, e.g., Collins v. City of

Harker Heights, Tex., 503 U.S. 115, 122-23 (1992).

Municipal liability attaches only where “a deliberate

choice to follow a course of action is made from among

various alternatives by [the relevant} officials.”

Connick v. Thompson, 131 S.Ct. 1350, 1360 (2011),

quoting Pembaur v. Cincinnati, 475 U.S. 469, 479

(1986). Likewise, this Court has recognized that

individual public officials’ fear of monetary liability

under § 1983 justifies a grant of qualified immunity:

Under § 1983 [ ... ] a plaintiff may seek

money damages from government officials

who have violated her constitutional or stat-

utory rights. But to ensure that fear of liabil-

ity will not “unduly inhibit officials in the

discharge of their duties,” Anderson ov.

9

Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034,

97 L.Ed.2d 523 (1987), the officials may

claim qualified immunity; so long as they

have not violated a “clearly established”

right, they are shielded from personal liabil-

ity, Harlow v. Fitzgerald, 457 U.S. 800, 818,

102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).

Camreta v. Greene, 131 S.Ct. 2020, 2030-31 (2011).

Where a plaintiff seeks only injunctive relief, no such

immunity is available. See, e.g., Rogers v. Miller, 57

F.3d 986, 989 n. 4 (11th Cir. 1995) (“The qualified

immunity defense has no application to [ ... | at-

tempts to gain injunctive relief.”).

Lower courts have had no trouble recognizing

this basic distinction or its implications. In Farmer v.

Ramsay, for example, the district court held that

claims for damages brought directly under the Four-

teenth Amendment were properly dismissed, but that

“claim[s] for injunctive relief involve{] a different

analysis” and “are permissible directly under the 14th

Amendment.” 41 F. Supp. 2d 587, 591 (D. Md. 1999).

Once the distinction between § 1983 damages

claims and direct claims under the Fourteenth

Amendment is clarified, the Petitioners’ argument is

reduced to an assertion that courts and opposing

parties should be required to assume that a plaintiff

asserting a Fourteenth Amendment violation neces-

sarily means to assert a claim for damages under

§ 1983. The Fifth Circuit rejected this implicit bur-

den-shifting argument long ago: where a party “does

not rely on any statute or common law doctrine which

10

might authorize [... | a suit in the federal courts, we

must assume that [the party] wishes us to hold that

the Fourteenth Amendment alone provides a basis for

relief in this case.” Hearth, Inc. v. Department of

Public Welfare, 617 F.2d 381, 382 (5th Cir. 1980). This

reasonable approach assigns to plaintiffs the light

burden of notifying defendant municipalities and

public officials if they intend to seek money damages

for an alleged constitutional violation, rather than

just injunctive relief.

Petitioners point to this Court’s admonitions

against “heightened pleading standards,” but no such

standards are at issue here. See Pet. 7, citing Leath-

erman v. Tarrant County Narcotics Intelligence and

Coordination Unit, 507 U.S. 163, 168 (1993). This is

not a case in which the lower court demanded some

formal recitation beyond what Rule 8 requires. Nor is

it a case about the quantum of factual allegations

necessary to avoid dismissal. Cf Ashcroft v. Iqbal,

556 U.S. 662 (2009); Twombly, 550 U.S. 544. As noted

above, it is a case in which two different claims

were available, with the invocation of the Fourteenth

Amendment alone providing notice of one, and the

invocation of the Fourteenth Amendment and 42

U.S.C. § 1983 in tandem providing notice of another.

Petitioners simply did not meet their burden under

Rule 8(a)(2) of alleging a claim for damages against

the municipal and individual defendants.

Petitioners also point to dicta from this Court’s

opinion in Gomez v. Toledo, 446 U.S. 635 (1980).

However, Gomez addressed only the narrow question

11

whether a § 1983 plaintiff was required to plead bad

faith on the part of the government official, or alter-

natively, whether good faith was properly raised as

part of an affirmative defense of qualified immunity.

See id. at 635-36. The Court found the latter and

reversed. See id. at 638-42. The petitioner invoked

§ 1983 in his complaint and demanded backpay, so —

unlike this case — there was clear and explicit notice

of the nature of claim against the official. See id. at

636-37. In short, Gomez is wholly inapposite here.

Finally, Petitioners note that, in this particular

case, counsel for the Respondent correctly anticipated

that — despite the failure to plead § 1983 — Petition-

ers’ attorney might have subjectively intended to seek

money damages. See Pet. 10. Consequently, in an

abundance of caution, Respondents pled an affirma-

tive defense under that statute. See id. However, this

point only illustrates just how fact-bound and idio-

syncratic the dispute here is.

Petitioners’ counsel is among the most experi-

enced plaintiff attorneys in Mississippi. Respondent’s

counsel has litigated many dozens of municipal civil

rights cases against him. As a result, Respondent’s

counsel has learned to anticipate the intentions of

Petitioners’ counsel, even where the complaint fails to

make them clear. In particular, Respondent’s counsel

knew that Petitioners’ counsel recently had another

direct Fourteenth Amendment claim dismissed be-

cause of failure to plead § 1983, and had other com-

plaints dismissed for the same reason before. See

Lofton v. City of West Point, Miss., 2012 WL 1135862

12

at *10 (N.D. Miss. 2012). In short, Respondent’s

counsel was aware Petitioners’ counsel might later

try to convert his direct Fourteenth Amendment

action into a § 1983 damages claim, as he attempted

to do im other cases. Thus, Respondent’s counsel

raised a defense to § 1983 in case the district court

erred and permitted such a reversal in course.

In other words, one specific attorney was able to

read the tea leaves and anticipate an attempt to raise

an unpled claim due to years of experience litigating

against another specific attorney. Other counsel

should not have to read the tea leaves. Rule 8 re-

quires only that they read the complaint. Here, the

complaint contained a direct action under the Four-

teenth Amendment, including a request for injunctive

relief in the form of “reinstatement.” App. 20-26.

The district court and the Fifth Circuit correctly

applied a straightforward rule. That rule assigns

plaintiffs the light burden of notifying public entities

and officials — normally by invoking 42 U.S.C. § 1983

— if they intend to seek damages rather than the

injunctive relief available directly under the Consti-

tution. This is consistent with this Court’s mandate

that pleadings provide “fair notice of what the [... |

claim is and the grounds upon which it rests.”

Twombly, 550 U.S. at 555. Petitioners have failed to

provide any compelling justification for review here,

so the writ shuuld be denied.

¢

13

CONCLUSION

For the foregoing reasons, the Court should deny

the petition for a writ of certiorari.

Respectfully submitted,

Gary E. FRIEDMAN

PHELPS DUNBAR LLP

4270 I-55 North

Jackson, Mississippi 39211

Telephone: 601-352-2300

Facsimile: 601-360-9777

Email: friedmag@phelps.com