Little v. City of North Miami

805 F.2d 962, 35 Educ. L. Rep. 1037, 1986 U.S. App. LEXIS 34498
Court of Appeals for the Eleventh Circuit·Decided December 9, 1986·No. No. 85-6068·Published·Cited by 64 cases

Opinion

CORRECTED OPINION

PER CURIAM:

This case involves alleged civil rights violations. Appellant brought an action against multiple defendants in the United States District Court for the Southern District of Florida alleging inter alia five violations of 42 U.S.C. § 1983 (1981). Little v. City of North Miami, 624 F.Supp. 768, 770 (S.D.Fla.1985). The District Judge dismissed the civil rights claims for failure to state a claim upon which relief could be granted. Little, 624 F.Supp. at 771-74. Because we conclude that appellant’s first amendment and procedural due process claims state causes of action cognizable under Section 1983, we reverse.

I.

BACKGROUND

For the purpose of evaluating the sufficiency of a complaint, we must accept the facts pleaded as true and construe them in the light most favorable to appellant. Quality Foods de Centro Americo, S.A. v. Latin American Agribusiness Development Corp., S.A., 711 F.2d 989, 994-95 (11th Cir.1983). Appellant is a member of the Florida Bar Association and a professor of law at the University of Florida. Prior to October, 1983, appellant represented the Florida Defenders of the Environment in two Florida state court civil actions. This representation was on a pro bono publico basis with the approval of the University of Florida. The City of North Miami was an intervening party in the second lawsuit and was represented by Jennifer Hurst Kroner, an attorney employed by Simon, Schindler and Hurst, P.A. This state litigation involved the constitutionality of state appropriation for the purchase of land owned by the City of North Miami.

On October 11, 1983, the city Council of North Miami adopted Resolution No. R83-65 which states: “the Council of the City of North Miami hereby censures Professor Joseph W. Little for improper use of public funds to represent private parties in litigation against the State and against the interests of the City of North Miami.” This resolution was passed and read aloud at a public meeting without notice to appellant and without verification that the assertions were truthful. Copies of R83-65 were circulated to twenty persons, including the president of the University of Florida, the dean of the University of Florida College of Law, the chairman and members of the Florida Board of Regents, the members of the Florida Legislature representing Dade County, and the Florida State Auditor General.

As a result of the passage and publication of the resolution, governmental investigations were undertaken and appellant claims he “suffered damage to his reputation, his employment relations, and mental and emotional pain and distress.” Appellant does not assert that his employment has been terminated or that he has been denied tenure. Nevertheless, appellant brought an action against the city of North Miami, the mayor and council members, the attorney who prepared the resolution and the legal professional association who employed her. The complaint sought damages for five alleged constitutional violations and five pendant state law claims. As indicated, the district court dismissed the federal claims pursuant to Fed.R.Civ.P. 12(b)(6) without prejudice for appellant to seek redress for his state claims in state court. Little, 624 F.Supp. at 774. We have distilled the federal claims down to four issues and shall analyze them seriatim in order to determine whether appellant set forth sufficient facts which would entitle [965]*965him to relief. For the reasons that follow, we reverse the ruling of the district court with respect to appellants’ first amendment and procedural due process claims.

II.

ANALYSIS

42 U.S.C. § 1983 (1981) provides in pertinent part:

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, privileges, 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.

To state a claim under this Section, “a plaintiff must allege facts showing that the defendant’s act or omission, done under color of state law, deprived him of a right privilege, or immunity protected by the Constitution or laws of the United States.” Emory v. Peeler, 756 F.2d 1547, 1554 (11th Cir.1985). Section 1983 creates no substantive rights; it does, however, provide remedies for deprivations of constitutionally protected interests. See Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 2694 n. 3, 61 L.Ed.2d 433 (1979). Local governing bodies and local officials in their official capacities can be sued under Section 1983 when a party can establish that he or she has suffered a constitutional deprivation as a result of either “a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers” or a “governmental ‘custom’ even though such a custom has not received .formal approval through the body’s official decision making channels.” Monell v. Department of Social Services, 436 U.S. 658, 690, 91, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978).

For the purposes of determining the sufficiency of a claim, the likelihood of recovery is irrelevant. See Seheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). As the Supreme Court observed, “[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test.” Seheuer, 416 U.S. at 236, 94 S.Ct. at 1686. This Court has acknowledged that “a complaint should not be dismissed for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) ‘unless it appears beyond doubt that plaintiff can prove no set of facts that would entitle him to relief.’ ” Bradberry v. Pinellas County, 789 F.2d 1513, 1515 (11th Cir.1986) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)).

A. Bill of Attainder

Appellant claims that R83-65 adopted and disseminated by the Council of the City of North Miami operates as a bill of attainder. A bill of attainder, forbidden by U.S. Const. Art. I § 9, cl. 3 and § 10, cl. 1, has been described as “a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.” Selective Service System v. Minnesota Public Interest Research Group,

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Little v. City of North Miami, 805 F.2d 962, 35 Educ. L. Rep. 1037, 1986 U.S. App. LEXIS 34498 (11th Cir. 1986).

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