Opposition Brief — Bodie v. City of Huntsville

Sees py « me 4 a | ada huey a8 Re ee REIS SP RT aN

alma IN BREESE eee

Pr, a 23s =P ee hy

No. 92-1968 JUL 8 1995

$$$ rit CLERK

In THE

Supreme Court of the Hnited States

Ocroser TERM, 1992

CorDe_ia ANN Bopig,

Petitioner,

vs.

Crry oF HUNTSVILLE, et al.,

Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

|

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Jor W. CAMPBELL

Counsel of Record

Georcs E, Knox, Jr.

JerrreY T. KELLY

LANIER Forp SHAVER & PAyne, P.C.

P.O. Box 2087

Huntsville, Alabama 35804

(205) 535-1100

Counsel for Respondents

Jeff Hamilton and the Health Care

Authority of the City of Huntsville

d/bla! Huntsville Hospital

A

| ele

} ia

a

a

es

3

i

a

;

&

ee

¢

~~

hte

.

ee

ie

.

fe

2,

4

2

.

P

%

‘

St. Louis Law Printing,Inc. 13307ManchesterRd. St.Louis, MO 63131 314-231-4477

Pee pe

+ Tag ‘a

5 Baa —_—— ——_— = -_— —— ee a aa

> ag fos Per

\ } ia’ ‘ue

ee haa Sy cir y geek FEF: ! ' ke De

Ni? Pie ee Pee SS

— a — LE

QUESTIONS PRESENTED

Whether certiorari should be granted to review a judgment

which reaches the correct result merely because one asserted

ground for the judgment, a “heightened pleading requirement”

for civil rights actions, is incorrect.

Whether costs were properly taxed to the petitioner when her

action was dismissed for failure to state a claim and the dismissal

was affirmed on appeal.

PARTIES

Cordelia Ann Bodie, Petitioner:

Errol Fitzpatrick, Risk Manager, City of Huntsville, Alabama,

Respondent;

Larry P. Hail, Risk Management Department, City of Huntsville,

Alabama, Respondent;

Jeff Hamilton, Employee of The Health Care Authority of the

City of Huntsville, Alabama, Respondent;

Health Care Authority of the City of Huntsviile d/b/a Huntsville

Hospital, Respondent;

Steve Hettinger, Mayor of the City of Huntsville, Alabama,

Respondent;

City of Huntsville, Alabama, Respondent;

Ernest Kaufmann, Council Member, City of Huntsville, Ala-

bama, Respondent;

Bill Kling, Council Member, City of Huntsville, Alabama,

Respondent;

Richard Liles, Administrative Assistant to the Mayor of the City

of Huntsville, Respondent;

Charles Perry, Respondent;

James Putnam, Council Member, City of Huntsville, Alabama,

Respondent;

Richard Showers, Council Member, City of Huntsville, Ala-

bama, Respondent;

James D. Thornton, III, Respondent;

James Wall, Jr., Council Member, City of Huntsville, Alabama,

Respondent;

Wikle, Thornton, Holcombe and Associates, Inc., Respondent;

The Healthcare Authority of the City of Huntsville, d/b/a Hunts-

ville Hospital, has no parent company and no subsidiaries

which are not wholly owned.

— IN—

TABLE OF CONTENTS

Page

ial ataipdsaisebanndnnnnindsiindseiente i

Tee ei ciesabiatindpnnpimdsiandniacdansbsaccnes ii

aia saad erissncenmbannstnnecencnnn v

(EEE a Vv

SEES SEE Orn a vi

Statement Of Opinions Below ................cccccossssoscessccsesees 1

IE SCION .. son ccconsccnscssoccsssssnstacesesesneseeess 2

as csccnsnnasescsenesebenny habinhalcbbndaas 2

Statement Of the Case .................cceccsccscssseuse peeeeensensees 2

III snes csnievdstocesocneneesnensncetnstoichenscensee 5

ESSERE A Ee nn a 6

I. THE JUDGMENT OF THE ELEVENTH CIR-

CUIT WAS CORRECT AND THE PETITION

FOR WRIT OF CERTIORARI IS DUE TO BE

DENIED BECAUSE, UNDER ANY STAN-

DARD, THE PETITIONER FAILED TO STATE

A CLAIM FOR WHICH RELIEF COULD BE

aa a aR eS i a 6

A. The petitioner failed to allege a violation of

any federally protected right which would

give rise to a cause of action under Section

SIS siclicindid das opcosiisincinlasdanbeniclicssediinmnintideceacsieees 7

a

B. The petitioner’s failure to allege any facts

whatsoever to support her allegation that these

respondents were guilty of a conspiracy to

violate her civil rights required the dismissal

OE IE I siesitcesterchannatisiesasenntcitatnninahneninniinnetons

C. Dismissal of the petitioner’s action was appro-

priate because it was barred by the applicable

statute Of TAMMARTIORS. .....2....0ec.scrscsssssccssossesesss

II. THE ROUTINE ASSESSMENT OF COSTS

AGAINST THE PETITIONER AS THE LOSING

PARTY IN THE LAWSUIT WAS NOT ERROR

AND DOES NOT MERIT REVIEW BY THE

CFE ITED 0 cscdessccseceabennesciatinseseasnancnnnantiasitsonnianiadcosaes

a ee RIAN A ET LY ARNE NO ON

I Sd digianecniiaean

TABLE OF AUTHORITIES

Page(s)

Cases:

Blum v. Morgan Guar. Trust Co. of New York, 709 F.2d

RAGS Ch RU CAE. BBD ncnccicinssescnntathacptenshelnsnaeunsnite

Burda v. M.Ecker Company, 954 F.2d 434 (7th Cir.

ChevronU.S A.,Inc.v. Natural Resources Defense Coun-

cil, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d

GG CD wikeskiccuniccensitecintegiinacbnaiciaaniinns

Davidson v. State of Georgia, 622 F.2d 895 (Sth Cir.

Delta Airlines, Inc. v. August, 450 U.S. 346, 101 S.Ct

L208, G7 Lice Bee CED ketene

District of Columbia v. Air Florida, Inc., 750 F.2d 1077

Is Ga IPD Nonssisassansecteinncsosihononsnedinnedisssaniadmumiads

Farrar v. Hobby, __U.S.__, 113 S.Ct. 566, 121 L.Ed.2d

Re CIID nkcintontonininnncetcundidalisuanssiataasiabemeadiadias

Helvering v. Gowan, 302 U.S. 238, 58 S.Ct. 154, 82

Rae RET IMEI P icadncacccsantocnbibdesmsendeasaninincbulakion

Hewitt v. Helms, 482 U.S. 755, 107 S.Ct. 2672, 96

Rane PD UNE D ncciensrccnsnedbcgsemsadincisiansaenveiniinsen

Jimenez v. Toledo, 604 F.2d 99 (P.R. 1979) ................

Jones v. Preuit, 876 F.2d 1480 (11th Cir. 1989) ...........

Leatherman v. Tarrant County Unit, __ U.S. __, 113

S.Ct. 1160, 122 L.Ed.2d 517 (1993) ...........c..scceess

10

a= Yi a=

Lepucki v. Van Wormer, 587 F.Supp. 1390 (N.D. Ind.

1984) aff d per curiam, 765 F.2d 86 (7th Cir.), cert.

denied 474 U.S. 827, 106 S.Ct. 86, 88 L.Ed.2d 71

CDBG) cccncccccascssecsncsnssesebinmesntnisiibcinimaiesiiasnaets 10

Owens v. Okure, 488 U.S. 235, 109 S.Ct. 573, 102

LR MIEDS FOG CISGPP ccccccccscescceccsttintininsinainishieminenes 8

Poe v. John Deere Company, 695 F.2d 1103 (8th Cir.

NEED cencecccncnscntnnessscsbesnnsinsnnnienepesisumeapeaianatinaansmiies 10

Singleton v. City of New York, 632 F.2d 185 (2nd Cir.

1980) cert denied 450, U.S. 920, 101 S.Ct. 1368, 67

OC a Siete 9

Strauss v. City of Chicago, 760 F.2d 765 (7th Cir.

TILE Hin IRE 7

Statutes and Rules:

Alabama Code § 6-2-38(1) (1975) .cccecescscssscssssssssssssssee x

2B U.S.C. § 12SACT) -aazczeeeeeceeeeececococecosocccococonccccocosccscsce 2

GB BEE 0 10 seseccceesssscsncsrnssretonncciicairestpameam 6,7,8

42 U.S.C. § 1988 coccccssssscscsscsssssscessssscssessssseeee ee 10

Ped R.Ag a P. SIA) .cccccccccesccocsesescccnssseccsvsnesssssssesssseseneess 10

Fed R.CIV.P. 8 cccccccscccscssssssscscsssssssssssssssesssssesesecessseseseee 7

Fed. R.Civ.P. 12(16)(6) cocccccoccccccssccssssssssssssssssessueseseseeesee 5

Ped R.CivP.. S4(G) ncccccccccccecoccrssseccocssccsensccsssssssenssesessceses 9

No. 92-1968

In THE

Supreme Court of the Anited States

Octoser Term, 1992

Corpeia ANN Bopie,

Petitioner,

vs.

Crry or HUNTSVILLE, et al.,

Respondents.

Petition for Writ of Certiorari to the

United States Cour of Appeals for the Eleventh Circuit

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

STATEMENT OF OPINIONS BELOW

The opinion of the Eleventh Circuit affirming the district

court's dismissal of the petitioner's action is unreported (App. A,

infra, Al-A2). Also unreported are the district court’s order

dismissing the case (App. B, infra, A3-A4) and the Eleventh

Circuit's order denying the petition for rehearing filed in that

court (App. C, infra, AS).

a

STATEMENT OF JURISDICTION

The Court has discretionary jurisdiction to grant certiorari in

this case pursuant to 28 U.S.C. § 1254(1). The Court of Appeals

for the Eleventh Circuit entered its judgment in favor of the

respondents and issued its opinion on March 3, 1993. The

petitioner filed a petition for rehearing on March 22, 1993, and

the petition was denied on April 12, 1993. The petitioner filed

a petition for writ of certiorari in this Court on June 7, 1993.

STATUTES INVOLVED

42 U.S.C. § 1983 provides as follows:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

District of Columbia, subjects or causes to be subjected,

any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privi-

leges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress. For the

purposes of this section, any Act of Congress applicable

exclusively to the District of Columbia shall be considered

to be a statute of the District of Columbia.

STATEMENT OF THE CASE

This civil action began on January 10, 1992 when the peti-

tioner, Cordelia Ann Bodie, filed a complaint pursuant to 42

U.S.C. § 1983 in the U.S. District Court for the Northern District

of Alabama. (R. 1-1-1). The complaint named fifteen separate

individuals and entities as defendants and contained four counts

in which the petitioner alleged that the defendants had conspired

to deprive her of her civil rights under color of state law.

The petitioner is a registered nurse formerly employed by the

City of Huntsville, Alabama at the City Clinic. (R.1-3-2). The

deta

named defendants included the City of Huntsville, the Mayor of

the City, all members of the Huntsville City Council, various

employees of the City, the Health Care Authority of the City of

Huntsville, an employee of the Health Care Authority, an insur-

ance agency in Huntsville, and a principal in that agency. (R. 1-

1-3-4). On February 3, 1992, the petitioner filed an amended

complaint in which she essentially set forth the same claims

contained in the original complaint without materially changing

her allegations. (R. 1-3-1).

With regard to the respondents Jeff Hamilton and the Health

Care Authority of the City of Huntsville (“Huntsville Hospital”),

the complaint, as amended, appears to allege that those defen-

dants 1) conspired with the other defendants to deprive the

petitioner of the employment of her choosing without due

process and in violation of the Fourteenth Amendment to the

United States Constitution, 2) conspired with the other defen-

dants to “freeze out” the petitioner from her employment at the

Huntsville City Clinic by “requiring her to work in an unsafe and

unsanitary work environment” and thereby depriving the peti-

tioner of “equal protection of the laws guaranteed by the Four-

teenth Amendment of the United States Constitution,” 3)

conspired with the other defendants to compel the petitioner to

leave her employment with the City of Huntsville in retaliation

for her pursuit of an employee grievance, in violation of the

petitioner’s First Amendment rights of free speech and petition,

and 4) conspired with the other defendants “to interfere with and

impair the value of” a personal professional liability insurance

policy held by the petitioner, in violation of Article 1, Section 10,

of the Constitution of the United States. (R. 1-3-9-12).

The above claims actually appear to have been asserted

against each of the defendants and were asserted against Hamilton

and Huntsville Hospital only insofar as they fell within the

general category of “defendants.” The only specific allegations

concerning conduct on the part of Hamilton and the Hospital

were that 1) Hamilton brought health care consultants to the City

Clinic in November 1988 to aid him in gathering information

regarding the manner in which the clinic was operated, and 2)

Huntsville Hospital subsequently submitted to the City of Hunts-

ville a report concerning Hamilton’s findings. (R. 1-2-6-7).

All defendants filed motions to dismiss the action on the

grounds that, inter alia, the petitioner had failed to state a claim

upon which relief could be granted. (R. 1-5-1, 1-4, 5, 7, 8, 10).

On April 22, 1992, the district court entered an order granting the

motions to dismiss filed by the defendants. (R. 1-13-1). The

district court stated:

After one complaint, one amended complaint and a prof-

fered second amended complaint, the plaintiff has pre-

sented the court with nothing more than 20 pages of single-

spaced, typewritten, legal silliness. . . . The plaintiff recites

a series of seemingly unrelated events that allegedly oc-

curred over a period of approximately six years and con-

cludes that she has been the victim of a conspiracy... .

Without recounting all the many details alleged by the

plaintiff, it is sufficient to note that she fails to allege any

violation of any federally protected right... As noted at the

Rule 16(b) conference in this case, the action, at least as to

most defendants, is patently frivolous and may entitle them

to an award of attorney’s fees under 42 U.S.C. § 1988.

(R. 1-13-1, 2).

The petitioner filed an appeal to the Court of Appeals for the

Eleventh Circuit on May 15, 1992. (R. 1-19-1). On March 3,

1993, the Eleventh Circuit affirmed the judgment of the district

court and issued an unpublished opinion stating that “Bodie’s

claims of conspiracy lack the specificity required in civil rights

actions and, in any event, she failed to allege how the defendants

abridged her free speech rights or any other constitutional night.”

A petition for rehearing filed on March 22, 1993 was denied on

en — FR —

Pn,

April 12, 1993, and the petitioner filed a petition for writ of

certiorari in this Court on June 7, 1993.

SUMMARY OF ARGUMENT

The petition for writ of certiorari is due to be denied because

the judgment of the Eleventh Circuit was correct. The “height-

ened pleading requirement” was merely one reason asserted by

the Eleventh Circuit for holding that the dismissal of the

petitioner’s action was proper. The additional grounds stated in

the opinion of the Eleventh Circuit are not in conflict with any

decision of this Court and, standing alone, required an affir-

mance of the district court’s dismissal of the petitioner’s claims.

Moreover, the district court’s decision could have been appro-

priately affirmed on grounds not referred to in the opinion of the

Eleventh Circuit, as the petitioner’s pleadings themselves affir-

matively demonstrated that all claims presented against these

respondents were barred by the applicable statute of limitations.

The petitioner’s contention that certiorari is due to be granted

because the courts below somehow erred in taxing costs to the

petitioner is also without merit. The respondents prevailed both

in the district court and on appeal, and the assessment of costs to

the petitioner was appropriate.

A Men

ARGUMENT

I. THE JUDGMENT OF THE ELEVENTH CIR-

CUIT WAS CORRECT AND THE PETITION

FOR WRIT OF CERTIORARI IS DUE TO BE

DENIED BECAUSE, UNDER ANY STANDARD,

THE PETITIONER FAILED TO STATE A

CLAIM FOR WHICH RELIEF COULD BE

GRANTED.

The petitioner contends that certiorari is due to be granted

because, in the opinion issued by the Eleventh Circuit, that Court

relied in part upon the “heightened pleading requirement” re-

cently invalidated by this Court in Leatherman v. Tarrant

County Narcotics Unit, _ U.S. _, 113 S.Ct. 1160, 122 L.Ed.2d

517 (1993). However, this Court reviews judgments and not

opinions. Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 104 S.Ct 2778, 81 L.Ed.2d 694

(1984). A correct judgment will not be disturbed even if based

upon an inappropriate ground or a wrong reason. Helvering v.

Gowan, 302 U.S. 238, 58 S.Ct. 154, 82 L.Ed.2d 244 (1937). The

petition for writ of certiorari is due to be denied because a

dismissal of the petitioner’s action was required for several

reasons, some of which were stated in the Eleventh Circuit’s

opinion and in the district court’s order of dismissal.

Each of the lower courts correctly recognized that the peti-

tioner failed to allege a violation of any federally protected right

that would be actionable under 42 U.S.C. § 1983. The petitioner

also presented no factual averments which, if proven, would

support the bold conclusion that these respondents conspired to

violate the petitioner’s civil rights. Finally, the allegations con-

tained in the complaint, as amended, indicated that the petitioner’s

claims were barred by the applicable statute of limitations.

A. The petitioner failed to allege a violation of any

federally protected right which would give rise toa

cause of action under Section 1983.

Even a cursory review of the pleadings filed by the petitioner

reveals that she wholly failed to allege that these respondents

took any action to violate her civil rights. The district court

specifically noted that there was acomplete failure to “allege any

violation of any federally protected right” (R. 1-13-1), and the

Eleventh Circuit observed that the petitioner “failed to allege

how the defendants abridged her free speech rights or any other

constitutional right.” Even in the absence of a “heightened

pleading requirement,” the petitioner simply did not state a cause

of action under Section 1983.

The petitioner’s failure to aver facts indicating that her consti-

tutional rights were violated in a manner which might give rise

toa cause of action under Section 1983 required the district court

to dismiss her action and required the Eleventh Circuit to affirm.

It is well-established that a complaint must allege the necessary

elements of a claim in order to withstand a motion to dismiss.

Strauss v. City of Chicago, 760 F.2d 765 (7th Cir. 1985); District

of Columbia v. Air Florida, Inc., 750 F.2d 1077 (D.C. Cir. 1984);

Blum v. Morgan Guar. Trust Co. of New York, 709 F.2d 1463

(11th Cir. 1983). The allegations contained in the petitioner’s

complaint and amended complaint were insufficient under the

notice pleading provisions of Rule 8 of the Federal Rules of Civil

Procedure.

B. The petitioner’s failure to allege any facts whatso-

ever to support her allegation that these respon-

dents were guilty of a conspiracy to violate her civil

rights required the dismissal of her action.

The petitioner’s complaint and amended complaint alleged

that Jeff Hamilton and Huntsville Hospital initiated a study of the

Huntsville City Clinic and made certain recommendations to the

ae

City concerning future management of the clinic. There were no

other specific allegations of conduct by Huntsville Hospital or

Hamilton.

These allegations, even if presumed true as required on a Rule

12(b)(6) motion to dismiss, do not in any way support the theory

that Hamilton and Huntsville Hospital were involved in a con-

spiracy to violate the petitioner’s civil rights. It has long been the

rule in the Eleventh Circuit and its predecessor circuit that a

complaint cannot survive a motion to dismiss if it merely sets

forth conclusory allegations without alleging facts which, if

proven, would warrant the relief sought. Davidson v. State of

Georgia, 622 F.2d 895 (Sth Cir. 1980).

C. Dismissal of the petitioner’s action was appropri-

ate because it was barred by the applicable statute

of limitations.

In Owens v. Okure, 488 U.S. 235, 109 S.Ct. 573, 102 L.Ed. 2d

594 (1989), a unanimous Court held as follows:

... where state law provides multiple statues of limitations

for personal injury actions, courts considering § 1983

claims should borrow the general or residual statute for

personal injury actions.

Owens, 109 S.Ct. at 582. In an earlier footnote, the Court in

Owens specifically cited Alabama Code § 6-2-38(1) (1975) as an

example of a “general provision which applies to all personal

injury actions.” Jd. at 579. Based upon the above, the Eleventh

Circuit held that “after Owens, the two year statute of limitations

of Ala. Code § 6-2-38(1) applies to section 1983 actions in

Alabama.” Jones v. Preuit, 876 F.2d 1480, 1483 (11th Cir.

1989).

In cases involving a continuing conspiracy to violate civil

rights, the statute of limitations runs from the occurrence of each

act in furtherance of the alleged conspiracy. Jimenez v. Toledo,

IB ee

604 F.2d 99 (P.R. 1979). In the instant case, the petitioner has

failed to set forth any allegation that the respondents actively or

deliberately concealed the alleged conspiracy so as to toll the

applicable statute of limitations. Therefore, the general rule

cited above governs this action and the statute of limitations must

run from the last wrongful act of Huntsville Hospital and Jeff

Hamilton alleged in the complaint. Singleton v. City of New

York, 632 F.2d 185 (2nd Cir. 1980), cert. denied 450 U.S. 920,

101 S.Ct. 1368, 67 L.Ed.2d 347 (1981).

The petitioner’s complaint alleges no culpable conduct on the

part of these respondents after January 4, 1990. In fact, there is

no allegation of any conduct by Huntsville Hospital or Hamilton

after January 4, 1990. Because the petitioner’s suit was not filed

until January 10, 1992, the applicable statute of limitations bars

the petitioner’s action agairist Hamilton and Huntsville Hospital

and the Eleventh Circuit correctly affirmed the district court’s

dismissal of the case.

Il. THE ROUTINE ASSESSMENT OF COSTS AGAINST

THE PETITIONER AS THE LOSING PARTY IN

THE LAWSUIT WAS NOT ERROR AND DOES NOT

MERIT REVIEW BY THE COURT.

Both the district court and the Eleventh Circuit awarded costs

to the respondents after entering judgment in their favor. The

petitioner contends that this assessment of costs merits review by

the Court because taxing costs to the petitioner somehow erro-

neously implies that the respondents were “prevailing parties.”

Actually, the respondents did prevail both in the district court

and on appeal, and the assessment of costs against the petitioner

as the losing party in the lawsuit was not only permissible but

routine.

The Federal Rules of Civil Procedure provide that “costs shall

be allowed as of course to the prevailing party unless the court

otherwise directs...’ Fed. R. Civ. P. 54(d). Where an action is

pa re

dismissed for failure to state a claim upon which relief may be

granted, as occurred in the present case, the defendant is a

“prevailing party” to whom costs are to be awarded. See, e.g.,

Burda v. M. Ecker Company, 954 F.2d 434, 440 (7th Cir. 1992);

Lepucki v. Van Wormer, 587 F.Supp. 1390, 1394 (N.D. Ind.

1984), aff d per curiam, 765 F.2d 86 (7th Cir.), cert. denied 474

U.S. 827, 106 S.Ct. 86, 88 L.Ed.2d 71 (1985). As this Court has

noted, liability for costs is a “normal incident of defeat.” Delta

Airlines, Inc. v. August, 450 U.S. 346, 352, 101 S.Ct. 1146, 1150,

67 L.Ed. 2d 287 (1981). A civil rights litigant is treated no

differently than litigants in other cases with regard to taxation of

costs, Poe v. John Deere Company, 695 F.2d 1103, 10108 (8th

Cir. 1982), and the district court’s taxation of costs to the

petitioner was not error.

The Eleventh Circuit’s taxation of costs on appeal was also

appropriate. The Federal Rules of Appellate Procedure provide

that, when a judgment is affirmed, “costs shall be taxed against

the appellant unless otherwise ordered...” Fed. R. App. P. 39(a).

In accordance with this rule, costs were taxed against the

petitioner when the district court’s judgment was affirmed by the

Eleventh Circuit. The petitioner’s contention that this routine

assessment of costs merits the Court’s review is based upon an

erroneous belief that a party in a civil rights action must qualify

as a “prevailing party” under 42 U.S.C. § 1988 in order to be

awarded court costs. As support for her argument, the petitioner

cites only Farrar v. Hobby,__ U.S. __, 113 S.Ct. 566, 121 L.Ed.

2d. 494 (1992) and Hewitt v. Helms, 482 U.S. 755, 107 S.Ct.

2672, 96 L.Ed. 2d 654 (1987), two cases in which the Court

addressed the standard for awarding attorney’s fees to plaintiffs

in civil rights cases. These decisions have no application to the

case at bar, and the petition for writ of certiorari is due to be

denied.

ee |

CONCLUSION

For the reasons stated above, the petition for writ of certiorari

is due to be denied.

Respectfully submitted,

Joe W. Campbell

Counsel of Record

George E. Knox, Jr.

Jeffrey T. Kelly

Counsel for Respondents

Jeff Hamilton and the Health Care

Authority of the City of Huntsville

d/b/a/ Huntsville Hospital

Of Counsel:

LANIER FORD SHAVER & PAYNE, P.C.

P.O. Box 2087

Huntsville, AL 35804

(205) 535-1100

a

CERTIFICATE OF SERVICE

I hereby certify that three copies of the foregoing have been

served upon the attorneys of record for this cause, by first-class

mail, postage prepaid, on this the 8th day of July, 1993, as

follows:

Cordelia Ann Bodie

Petitioner pro se

1128 Hermitage Ave SE

Huntsville, AL 35801

Kerri Wilson Riley

P.O. Box 308

Huntsville, AL 35804

Michael Fees

P.O. Box 18248

Huntsville, AL 35804

Donald Spurrier

3226 Bob Wallace Ave.

Huntsville, AL 35805

/s/ Jeffrey T. Kelly

Of Counsel

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 92-6441

Non-Argument Calendar

D.C. Docket No. 92-N-103

CORDELIA ANN BODIE,

Plaintiff-Appellant,

versus

CITY OF HUNTSVILLE;

WIKLE, THORNTON, HOLCOMBE & ASSOCIATES,

INC.;

HEALTHCARE AUTHORITY,

THE CITY OF HUNTSVILLE, dba Huntsville Hospital;

; STEVE HETTINGER; ERNEST KAUFMAN;

BILL KLING, JR.; JAMES PUTNAM;

RICHARD SHOWERS; JAMES WALL, JR.;

ERROLL FITZPATRICK; LARRY P. HALL;

RICHARD LILES; CHARLES PERRY; JEFF HAMILTON;

JAMES D. THORNTON, III,

Defendants-Appellees.

Appeal from the United States District

for the Northern District of Alabama

(March 3, 1993)

Before ANDERSON, DUBINA and CARNES, Circuit Judges.

. PER CURIAM:

) Appellant Cordelia Ann Bodie (“Bodie’’), filed a pro se civil

rights complaint under 42 U.S.C. § 1983 in the United States

District Court for the Northern District of Alabama alleging that

|

Al...

a ly Al ee NR a gc ei eel

pay ee

the defendants conspired to violate her constitutional rights. The

district court dismissed the complaint for failure to state a claim

upon which relief could be granted. Moreover, the district court

held that Bodie’s vague and conclusory allegations of con-

spiracy were insufficient to state federal constitutional claims.

Our review of the record persuades us that the district court

was correct in dismissing Bodie’s complaint. We have consis-

tently held that mere conclusory allegations are insufficient to

state a claim under 42 U.S.C. § 1983, particularly for conspiracy

claims. See Oladeinde v. City of Birmingham, 963 F.2d 1481,

1485087 (11th Cir. 1992) (vague allegations, unsupported by

specific facts, constitute no basis for a section 1983 action);

Fullman v. Graddick, 739 F.2d 553, 556 (11th Cir. 1984) (“[iJn

civil rights and conspiracy action, ... more than mere conclusory,

notice pleading is required”). Furthermore, absent a loss of pay

or rank, there is no Fourteenth Amendment interest implicated

by job transfer. See Oladeinde, 963 F.2d at 1486.

Bodie’s claims of conspiracy lack the specificity required in

civil rights actions and, in any event, she failed to allege how the

defendants abridged her free speech rights or any other constitu-

tional right.

For the foregoing reasons, we affirm the judgment of the

district court.

AFFIRMED.

' There is also pending in this cause the appellees’ motions to strike

portions of appellant’s brief which we deny as moot.

ae

a

APPENDIX B

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

NORTHEASTERN DIVISION

CV-92-N-0103-NE

CORDELIA ANN BODIE,

Plaintiff,

VS.

CITY OF HUNTSVILLE, et al.,

Defendants.

Order of Dismissal

This civil action is before the court on motion of all the

defendants to dismiss pursuant to Rule 12(b)(6), Fed.R.Civ.P.,

for failure to state a claim upon which relief can be granted. The

motions have been briefed and submitted for decision. After one

complaint, one amended complaint and a proffered second

amended complaint, the plaintiff has presented the court with

nothing more than twenty pages of single spaced, typewritten,

legal silliness. The motions to dismiss will be granted and the

action will be dismissed.

According to the complaint, as last amended, the plaintiff

Cordelia Ann Bodie was employed by the City of Huntsville,

Alabama, as City Nurse from May 19, 1976, until July 30, 1990,

when she resigned her employment. She claims that the defen-

dants conspired to create intolerable working conditions so as to

deprive her of the right to employment with the City of Hunts-

ville. The plaintiff recites a series of seemingly unrelated events

that allegedly occurred over a period of approximately six years

and concludes that she has been the victim of a conspiracy.

Vague and conclusory allegations of conspiracy are insufficient

pay oe oe

as a matter of law to state federal constitutional claims. Fullman

v. Graddick, 739 F.2d 553 (11th Cir. 1984).

Without recounting all the many details alleged by the plain-

tiff, it is sufficient to note that she fails to allege any violation of

any federally protected right. Almost without exception, she

recounts events having to do with the decision of the City of

Huntsville to cease the operation of a City Clinic, of which she

was director, and to transfer the functions of that clinic toa public

hospital, defendant Healthcare Authority of Huntsville. She

claims that she was forced to resign her employment after she

was transferred to the city jail because of intolerable working

conditions but fails to allege facts which, if proven, would

demonstrate that conditions were, in fact, intolerable. She does

not claim that she filed any grievance concerning the alleged

conditions at the jail. See, Garner v. Wal-Mart Stores, Inc., 807

F.2d 1536 (11th Cir. 1987).

Welw ote! ade il

As noted at the Rule 16(b) conference in this case, the action,

at least as to most defendants, is patently frivolous and may

entitle them to an award of attorney fees under 42 U.S.C. § 1988.

The action is DISMISSED and costs are taxed against the

plaintiff.

Done, this _22nd_ of April, 1992.

/s/Edwin L. Nelson

EDWIN L. NELSON

UNITED STATES

DISTRICT JUDGE

a ee

a =

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 92-6441

CORDELIA ANN BODIE,

Plaintiff-Appellant,

versus

CITY OF HUNTSVILLE; WIKLE, THORNTON,

HOLCOMBE & ASSOCIATES, INC.

HEALTHCARE AUTHORITY,

THE CITY OF HUNTSVILLE, dba Huntsville Hospital;

STEVE HETTINGER; ERNEST KAUFMAN;

BILL KLING, JR.; JAMES PUTNAM;

RICHARD SHOWERS; JAMES WALL, JR.;

ERROLL FITZPATRICK; LARRY P. HALL;

RICHARD LILES; CHARLES PERRY; JEFF HAMILTON;

JAMES D. THORNTON, III,

Defendants-Appellees.

On Appeal from the United States District Court

for the Northern District of Alabama

ON PETITION FOR REHEARING

BEFORE: ANDERSON, DUBINA, and CARNES, Circuit

Judges.

PER CURIAM:

The petition for rehearing filed by appellant Cordelia Ann

Bodie is denied.

ENTERED FOR THE COURT:

/s/ JOEL F. DUBINA

United States Circuit Judge

April 12, 1993