Frank Gonzalez v. City of Hialeah

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 31, 2018
• Docket: 17-14041
• Status: Unpublished

Opinion

Case: 17-14041 Date Filed: 07/31/2018 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-14041 Non-Argument Calendar ________________________

D.C. Docket No. 1:17-cv-20128-RNS

FRANK GONZALEZ,

Plaintiff-Appellant,

versus

CITY OF HIALEAH,

Defendant-Appellee.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(July 31, 2018)

Before WILLIAM PRYOR, ANDERSON, and EDMONDSON, Circuit Judges. Case: 17-14041 Date Filed: 07/31/2018 Page: 2 of 9

PER CURIAM:

Plaintiff Frank Gonzalez, proceeding pro se, * appeals the district court’s

dismissal with prejudice of his fourth amended complaint, filed pursuant to 42

U.S.C. § 1983 and Florida law. Plaintiff also appeals the district court’s denial of

his motions to remand his state law claims. No reversible error has been shown;

we affirm.

Briefly stated, Plaintiff alleges these facts. Plaintiff was employed as a

police officer with the City of Hialeah (“City”) from 2000 until April 2007, when

Plaintiff resigned his position. In May 2008, the City reemployed Plaintiff subject

to a probationary period. Shortly thereafter, Plaintiff applied to take the October

2008 exam to be promoted to sergeant. The City denied Plaintiff’s application,

determining that Plaintiff was ineligible to take the exam.

In August 2008, the City initiated an investigation into Plaintiff’s alleged

failure to report a traffic accident involving his police car. In November 2008, the

City notified Plaintiff that a determination had been made that he failed to comply

with departmental policy and that, as a probationary employee, he had no right to a

pre-disciplinary hearing. The City terminated Plaintiff’s employment in January

2009.

* We construe liberally pro se pleadings. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). 2 Case: 17-14041 Date Filed: 07/31/2018 Page: 3 of 9

In December 2016, Plaintiff filed this civil action in Florida state court; the

City then removed the case to federal district court. In his Fourth Amended

Complaint -- the operative complaint on appeal -- Plaintiff purports to assert these

claims: (1) the City violated his procedural due process rights, in violation of 42

U.S.C. § 1983, when it terminated his employment without a pre-termination or

post-termination hearing; (2) the City violated his procedural due process rights, in

violation of section 1983, by denying his application to take the sergeant’s exam

without a pre-denial hearing; (3) for rescission and cancellation of a settlement

agreement between Plaintiff and the City; (4) challenging a City rule as violating

the Florida Constitution; and (5) challenging the City’s hiring process for police

commander and police major as violating the Florida Constitution.

The district court dismissed with prejudice Plaintiff’s two section 1983

claims for failure to state a claim. The district court then declined to exercise

supplemental jurisdiction over the remaining state law claims, and remanded the

claims to state court.

I.

Plaintiff first contends that the district court lacked subject matter

jurisdiction over his state law claims and, thus, erred in denying his two motions to

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remand to state court. We review de novo the denial of a motion to remand.

Henderson v. Wash. Nat’l Ins. Co., 454 F.3d 1278, 1281 (11th Cir. 2006). We

review for abuse of discretion the district court’s decision about whether to

exercise its supplemental jurisdiction. Parker v. Scrap Metal Processors, Inc., 468

F.3d 733, 738 (11th Cir. 2006).

The district court committed no error in denying Plaintiff’s motions to

remand. A district court may exercise supplemental jurisdiction over “state claims

which arise out of a common nucleus of operative fact with a substantial federal

claim.” Id. at 742-43. The state law claims raised in Plaintiff’s Third Amended

Complaint (the operative complaint when the district court ruled on Plaintiff’s

motions) concerned (1) the validity of the settlement agreement between Plaintiff

and the City arising from the termination of Plaintiff’s employment and the denial

of Plaintiff’s application to take the sergeant’s exam; and (2) the validity of a City

rule permitting the City to place Plaintiff on a probationary period and establishing

termination procedures. Because Plaintiff’s state-law claims arose from the “same

nucleus of operative fact” as his federal claims, the district court had discretion to

exercise supplemental jurisdiction over those claims and committed no error in

determining that remand was unwarranted.

That the district court later decided to relinquish its exercise of supplemental

jurisdiction over Plaintiff’s state-law claims -- after dismissing with prejudice

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Plaintiff’s federal claims -- does not render erroneous its earlier decisions to deny

Plaintiff’s motions to remand. See Parker, 468 F.3d at 743 (a district court has

discretion to decline to exercise supplemental jurisdiction over state law claims

when it “has dismissed all claims over which it has original jurisdiction”).

We also reject Plaintiff’s argument that the City’s notice of removal was

procedurally defective. The notice contained a “short and plain statement of the

grounds for removal” and, thus, satisfied the requirements of 28 U.S.C. § 1446(a).

II.

Plaintiff next challenges the dismissal of his procedural due process claims.

We review de novo a district court’s dismissal of a complaint for failure to state a

claim; we accept as true all factual allegations and construe them in the light most

favorable to the plaintiff. Brooks v. Warden, 800 F.3d 1295, 1300 (11th Cir.

2015).

To state a claim for violation of procedural due process, a plaintiff must first

show that he had a property interest. Ross v. Clayton Cnty., Ga., 173 F.3d 1305,

1307 (11th Cir. 1999). Generally speaking, “a public employee has a property

interest in continued employment if state law or local ordinance in any way limits

the power of the appointing body to dismiss an employee.” Id. (quotation

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omitted). Probationary employees typically “lack property interests in their

employment because they are ‘at will’ employees without a legitimate claim of

entitlement to continued employment.” Id. at 1308.

Here, we consider three documents pertinent to Plaintiff’s employment: (1)

the City police department’s collective bargaining agreement (“CBA”); (2) the

City’s Civil Service Rules and Regulations (“CSRR”); and (3) the City’s Charter.

Both the CSRR and the City’s Charter provide that all employees are subject to an

initial probationary period. That Plaintiff was placed in a probationary period upon

his reemployment with the City -- and that Plaintiff was still within the

probationary period when his employment was terminated -- is undisputed. In

determining the nature of an employee’s status, however, we must look behind the

“probationary” label “to the controlling principles of state law and the substance of

the [employee’s] status.” Id.

Rule VIII § 4 of the CSRR provides that a probationary employee has no

civil service status or rights and may be discharged any time with or without cause.

Moreover, Rule X § 1 of the CSRR provides that, while a permanent employee

may not be removed until he is first served with written notice of the reasons for

removal, a probationary employee “may be discharged, suspended or demoted . . .

at any time without appeal to the Board.” Similarly, Article 25 § 3(d) of the CBA

provides that police officers may appeal a disciplinary suspension, except for

6 Case: 17-14041 Date Filed: 07/31/2018 Page: 7 of 9

officers “serving the initial probationary period . . . [who] may be terminated . . .

with or without cause, by the City.” Meanwhile, Article IV § 4.07(b)(4)(a)(2) of

the City Charter provides that an employee may be “removed for cause at any time

during the working test (probationary) period by the mayor subject to civil service

regulations, by providing written notice of the action taken to the employee,

together with reasons for the . . . removal.”

Considering these documents in their entirety, we are persuaded that the City

was not limited in its power to discharge a probationary employee and, thus, that

probationary employees had no property interest in continued employment. See

Ross, 173 F.3d at 1307. That the City’s Charter appears to allow removal only

“for cause” does not alter our conclusion. Because the City’s Charter grants the

mayor sole discretion to determine whether “cause” for removal exists -- and

because a probationary employee has no right to appeal that determination -- the

rules “create[] something tantamount to an ability to [remove] at will, rather than a

just cause standard.” See id. at 1308-09 (a probationary officer had no property

interest in his employment when the determination about whether grounds for

demotion existed was left exclusively for the warden “whose authority was

unchecked because there was no appeal right for probationary employees”).

Because Plaintiff has demonstrated no protected property interest in his continued

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employment, he can state no claim for a violation of his procedural due process

rights based on the termination of his employment.

Plaintiff has also failed to state a claim for violation of his procedural due

process rights based on the denial of his application to take the sergeant’s exam.

Rule V § 8(b)(1) of the CSRR provides that a police officer is eligible to take the

promotional sergeant’s exam only “[a]fter 4 years of continuous satisfactory

employment” as a police officer with the City’s police department. Plaintiff asserts

that he could use any four-year period of employment to satisfy this eligibility

requirement. We disagree. The plain language of the rule contemplates

unambiguously “continuous” employment leading up to the time of the

promotional exam, with no break in employment. Because Plaintiff failed to

satisfy the eligibility criteria for taking the promotional sergeant’s exam, Plaintiff

cannot show he was deprived of a protected property interest.

III.

Plaintiff next challenges the district court’s dismissal of his federal claims

without first allowing him an opportunity to amend his complaint. We review the

denial of a motion to amend a complaint under an abuse of discretion standard.

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Green Leaf Nursery v. E.I. DuPont de Nemours & Co., 341 F.3d 1292, 1300 (11th

Cir. 2003).

Because Plaintiff failed to attach a proposed amended complaint to his

motion to amend and failed to state what new information or claims he sought to

include in his amended complaint, the district court abused no discretion in

denying his motion. See U.S. ex. rel. Atkins v. McInteer, 470 F.3d 1350, 1362

(11th Cir. 2006) (a plaintiff seeking leave to amend “must either attach a copy of

the proposed amendment to the motion or set forth the substance thereof”).

AFFIRMED.