Chuck Foster v. Cherokee County

Case: 17-15651 Date Filed: 08/03/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-15651
Non-Argument Calendar
________________________
D.C. Docket No. 1:17-cv-01654-MHC
CHUCK FOSTER,
Plaintiff - Appellant,
versus
CHEROKEE COUNTY,
ASHLEY B. WATSON,
LORI THOMPSON,
TIM PRATHER,
JERRY COOPER,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(August 3, 2018)
Case: 17-15651 Date Filed: 08/03/2018 Page: 2 of 7
Before WILSON, JORDAN and BLACK, Circuit Judges.
PER CURIAM:
This case arises out of Chuck Foster’s termination from his position as a
firefighter with the Cherokee County Fire Department (the Department). The
gravamen of Foster’s complaint is that his termination was the product of a
conspiracy to credit false accusations of sexual harassment made against him by a
co-worker. The district court dismissed Foster’s complaint. On appeal, Foster
asserts the district court erred by dismissing his procedural due process and § 1983
conspiracy claims. 1 After review, 2 we affirm.
I. BACKGROUND
Foster, a certified firefighter, was employed by the Department for
approximately twenty-one years. Ashley Watson served as a
“firefighter/paramedic” at the Department. Foster avers that, at some unspecified
time, Watson was “disciplined for excessive absences and abuse of sick leave.” In
1
The district court construed Foster’s complaint as containing several other claims.
However, because none of those claims are mentioned in Foster’s briefing, they are abandoned.
Access Now v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“If an argument is not
fully briefed (let alone not presented at all) to the Circuit Court, evaluating its merits would be
improper . . . .”).
2
We review de novo the grant of a motion to dismiss under Rule 12(b)(6) for failure to
state a claim, accepting the allegations in the complaint as true and construing them in the light
most favorable to the plaintiff. Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010). In
reviewing a motion to dismiss, we consider whether the pleadings contain “sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quotation omitted). A claim is facially plausible when we can “draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
2
Case: 17-15651 Date Filed: 08/03/2018 Page: 3 of 7
2013, “headquarters” instructed Foster “to change the language on a previously
completed employee evaluation on . . .Watson.” Foster complied. Watson was
subsequently terminated “at the directions” of County Manager Jerry Cooper, Fire
Chief Tim Prather, and Human Resource Manager Lori Thompson.
“In an effort to regain her job,” Watson then “conspired” with Cooper,
Prather, Thompson, and “an unidentified political party.” As part of the
conspiracy, Watson “made false and malicious claims against [Foster],” including
that he had “changed her evaluation in retaliation for rejected sexual advances.”
“Defendants”—presumably Cooper, Prather, and Thompson—“went through the
motions of pretending to do an investigation of Watson’s claims” against Foster
“to justify giving Watson a job back.”
The investigation, conducted by an internal affairs investigator who had
been friends with Watson for approximately fifteen years, was a “farce.” At its
conclusion, “Watson was given a job, . . . a settlement at tax payer’s expense, and
allowed to retire,” while Foster was terminated on the basis of Watson’s
allegations, which Cooper, Prather, and Thompson knew to be false. Foster
appealed his termination, but “was never given a fair and impartial” proceeding.
Foster sued Cherokee County, Watson, Cooper, Prather, and Thompson
(collectively, the County). The district court dismissed Foster’s suit on the
3
Case: 17-15651 Date Filed: 08/03/2018 Page: 4 of 7
County’s motion. Foster appeals the district court’s dismissal of his procedural
due process and § 1983 conspiracy claims.
II. DISCUSSION
A. Procedural Due Process
The Fourteenth Amendment provides: “No state shall . . . deprive any person
of life, liberty, or property, without due process of law . . . .” U.S. Const. amend.
XIV, § 1. 3 This clause guarantees both substantive and procedural due process.
Zinermon v. Burch, 494 U.S. 113, 125 (1990). Foster claims a procedural due
process violation. Specifically, Foster asserts the County deprived him of a
protected property interest in his employment by terminating him and denying him
a “fair and honest” appeal. See McKinney v. Pate, 20 F.3d 1550, 1559 (11th Cir.
1994) (“[Where] an individual . . . asserts that his particular hearing was not fair
and impartial, he has raised only procedural due process concerns.”)
“In this circuit, a §1983 claim alleging a denial of procedural due process
requires proof of three elements: (1) a deprivation of a constitutionally-protected
liberty or property interest; (2) state action; and (3) constitutionally-inadequate
process.” Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003) (citing Cryder
3
The portion of Foster’s brief discussing his procedural due process claim refers to
violations of his rights “under the IV th [sic] and IVX Amendments.” We note the Fourth
Amendment does not guarantee the right to due process and that there is no “IVX Amendment”
in the United States Constitution. Thus, we presume Foster’s reference to the IVX Amendment
was intended as a reference to the Fourteenth Amendment—XIV in Roman numerals.
4
Case: 17-15651 Date Filed: 08/03/2018 Page: 5 of 7
v. Oxendine, 24 F.3d 175, 177 (11th Cir. 1994)). Foster’s claim fails, first, because
he has not alleged facts supporting a reasonable inference that he has a property
interest in his profession. Foster states he has a “property interest in his
professional certification.” But that allegation is a legal conclusion couched as a
factual allegation. Accordingly, we are not bound to accept it as true. Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009). The complaint does not contain any other
facts about Foster’s professional certification that could provide support for the
reasonable inference that obtaining it created a property interest in his
employment.
Moreover, Foster has not cited, and we have not found, any case law
supporting the proposition that obtaining a professional certification creates a
property interest under Georgia law. See Nicholas v. Gant, 816 F.2d 591, 597
(11th Cir. 1987) (noting that the existence of a legitimate entitlement is determined
in accordance with state law). Foster avers that “[a]s a public employee, [he]
possessed a property right in his continued employment.” But under Georgia law,
a public employee generally does not have a vested right to such employment, and,
unless the employment arrangement is modified by contract or statute, “power to
hire carries with it the implied power to fire.” Ogletree v. Chester, 682 F.2d 1366,
1369-70 (11th Cir. 1982). Thus, the district court was correct in concluding Foster
failed to allege a constitutionally-protected property interest.
5
Case: 17-15651 Date Filed: 08/03/2018 Page: 6 of 7
Relatedly, Foster avers his reputation was injured. But injury to reputation,
standing alone, does not constitute the deprivation of a protected property interest.
Behrens v. Regier, 422 F.3d 1255, 1259 (11th Cir. 2005). Instead, “a plaintiff
[must] show that the government official’s conduct deprived the plaintiff of a
previously protected property or liberty interest in addition to damaging the
plaintiff’s reputation.” Cypress Ins. Co. v. Clark, 144 F.3d 1435, 1436-37 (11th
Cir. 1998). Having failed to demonstrate that he was deprived of a protected
property interest, Foster cannot revive his claim by alleging reputational injury.
B. Conspiracy under § 1983
“[T]o sustain a conspiracy action under § 1983 . . . a plaintiff must show an
underlying actual denial of [his] constitutional rights.” Hadley v. Gutierrez, 526
F.3d 1324, 1332 (11th Cir. 2008) (quotation omitted). Because Foster has not
stated a claim that his Fourteenth Amendment right to procedural due process was
violated, his § 1983 conspiracy claim necessarily fails. Foster’s complaint also
alleges the existence of a conspiracy to deprive him of his right to equal protection.
But the only constitutional claim addressed in Foster’s briefing before this Court is
his procedural due process claim. Foster has, therefore, abandoned the argument
that the County conspired to deprive him of his right to equal protection.
6
Case: 17-15651 Date Filed: 08/03/2018 Page: 7 of 7
III. CONCLUSION
The district court’s dismissal of Foster’s procedural due process and § 1983
conspiracy claims is AFFIRMED.
7