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Barachkov v. Lucido

United States District Court, E.D. Michigan, Southern Division

September 3, 2015

PATRICIA BARACHKOV, et al., Plaintiffs,
v.
CHIEF JUDGE SEBASTIAN LUCIDO of the 41B District Court, in his official capacity, Defendant

          For Nancy Englar, Carol Diehl, Plaintiffs (2:04-cv-73977-PDB-DAS): Deborah L. Gordon, LEAD ATTORNEY, Sarah Prescott, Deborah L. Gordon Assoc., Bloomfield Hills, MI.

         For Linda Davis, Chief Judge, 41B District Court, Defendant (2:04-cv-73977-PDB-DAS): Timothy S. Ferrand, Cummings, McClorey, Sterling Heights, MI; Peter W. Peacock, Plunkett & Cooney (Mount Clemens), Mount Clemens, MI.

         For William Cannon, Interested Party (2:04-cv-73977-PDB-DAS): Marvin D. Sharon, Royal Oak, MI.

         For Patricia Barachkov, Nancy Englar, consolidated from 04-73977, Carol Diehl, consolidated from 04-73977, Plaintiffs (2:04cv73957): Deborah L. Gordon, LEAD ATTORNEY, Sarah Prescott, Deborah L. Gordon Assoc., Bloomfield Hills, MI USA.

         For Sebastian Lucido, Chief Judge, 41B District Court, Defendant (2:04cv73957): Peter W. Peacock, LEAD ATTORNEY, Plunkett & Cooney (Mount Clemens), Mount Clemens, MI USA; Timothy S. Ferrand, LEAD ATTORNEY, Cummings, McClorey, Clinton Township, MI USA.

         OPINION AND ORDER GRANTING PLAINTIFFS' EMERGENCY MOTION FOR REINSTATEMENT AND OTHER DECLARATORY RELIEF (ECF NO. 225) AND ORDERING DEFENDANT CHIEF JUDGE SEBASTIAN LUCIDO IN HIS OFFICIAL CAPACITY TO DEVELOP A PLAN WITHIN 60 DAYS TO REINSTATE PLAINTIFFS TO COMPARABLE POSITIONS WITH THE 41B DISTRICT COURT AND EDIT PLAINTIFFS' PERSONNEL FILES TO REFLECT THE JURY'S VERDICT

         PAUL D. BORMAN, UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Now before the Court is Plaintiffs Patricia Barachkov, Nancy Englar, and Carol Diehl's (" Plaintiffs" ) Emergency Motion for Reinstatement (Case no. 04-73957, ECF No. 225).[1] Defendant Chief Judge Sebastian Lucido (in his official capacity) has responded to this motion through his attorney Peter Peacock and Plaintiffs filed a reply. (Case no. 04-73957, ECF Nos. 244, 245).

         The Court previously held oral argument on this motion and Plaintiffs' Motion to Substitute Proper Party in Interest on March 24, 2015. (Case no. 04-73957, ECF No. 231). Then Defendant Judge Linda Davis' attorney Timothy Ferrand had responded to both Plaintiffs' motion to substitute and their Emergency motion for reinstatement. However, after oral argument and briefing the Court granted in part the Plaintiffs' motion to substitute, finding that the current Chief Judge of the 41B District Court, Judge Sebastian Lucido, was the proper party in interest, striking then Defendant Judge Davis' responses to Plaintiffs' motion for reinstatement, ( see case no. 04-73957 ECF No. 243, Court Order granting Motion to Substitute), and providing Defendant Chief Judge Lucido (" Chief Judge Lucido" ) the opportunity to respond to Plaintiffs' Motion for Reinstatement. ( Id. ). Defendant Chief Judge Lucido filed his response on April 27, 2015. (Case no. 04-73957, ECF No. 244). Thereafter, in accordance with the Court's order, Plaintiffs filed a supplemental reply. (Case no. 04-73957, ECF No. 245).

         Oral argument on this issue was held on July 29, 2015. For all the following reasons, the Court will GRANT IN PART Plaintiffs' Emergency Motion for Reinstatement.

         II. BACKGROUND AND PROCEDURAL POSTURE

         The Court recently summarized the long procedural posture of this case in its April 6, 2015 Opinion and Order reopening this action and granting in part Plaintiffs' Motion to Substitute Proper Party in Interest and therefore adopts that summary here. ( See case no. 04-73957, ECF No. 243 at 2-4).

         III. ANALYSIS

         Relevant to the issues before the Court now, the Sixth Circuit held in its most recent decision in this case[2] that (1) the Plaintiffs' constitutional right to procedural due process was violated because the they received no pre-termination process and there was " sufficient evidence from which a reasonable juror could conclude the Employees had a legitimate expectation of just-cause employment", Barachkov v. Davis ( Barachkov II ), 580 Fed.Appx. 288, 296 (6th Cir. 2014); and (2) former Defendant Judge Davis in her individual capacity was entitled to qualified immunity for the decision to fire the Plaintiffs without a pre-termination hearing because she " made an objectively reasonable determination that the Employees served at will", Id. at 298. The Sixth Circuit also recited the well-settled law that " [q]ualified immunity shields a defendant sued in his or her individual capacity from monetary liability; it does not shield a defendant from official-capacity claims for equitable relief, Hall v. Tollett, 128 F.3d 418, 430 (6th Cir. 1997), nor does it shield a defendant form individual-capacity claims for equitable relief, Flagner v. Wilkinson, 241 F.3d 475, 483 (6th Cir. 2001)." Barachkov II, at 294.

         Also pertinent to the issues before this Court are those issues that the Sixth Circuit did not address, overturn, or mention in its most recent treatment of this case. Most notably, Barachkov II did not disturb or implicate the Jury's finding (as set forth in the verdict form) that there was not " just cause" to terminate any of the Plaintiffs. Indeed, relevant to this motion, Barachkov II only addressed issues relating to whether there was sufficient evidence that Plaintiffs' constitutional rights had been violated (finding in the affirmative) and whether Defendant Judge Davis' determination that the Plaintiffs served at-will was a reasonable determination given the facts such that qualified immunity was appropriate (finding in the affirmative).

         Accordingly, Plaintiffs now come before this Court in a legal scenario where a jury has determined that their constitutional right to due process was violated and that there was no " just cause" to terminate them, but are not entitled to the compensatory or punitive damages because former Defendant Judge Davis was entitled to qualified immunity. Plaintiffs now renew their request for prospective injunctive relief against the proper party in interest, Defendant Chief Judge Lucido, and seek " an Order compelling Defendant to remove negative information relating to their terminations from their personnel files, reinstating the Plaintiffs to the same or similar positions as the ones from which they were illegally removed, and issuing a declaratory judgment in their favors." (Case No. 04-73957, ECF No. 225, at 3).

         Defendant Chief Judge Lucido opposes Plaintiffs' request for reinstatement for a number of reasons. The Court will address each in turn.

         A. Whether reinstatement is an available remedy in the context of a 14th Amendment Claim

         It is a " well-settled principle that the nature and scope of the remedy are to be determined by the violation, means simply that federal-court decrees must directly address and relate to the constitutional violation itself." Milliken v. Bradley, 433 U.S. 267, 282, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977); Carey v. Piphus, 435 U.S. 247, 259, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) (holding that compensation for injuries flowing from the deprivation of a constitutional rights " should be tailored to the interests protected by the particular right in question" ); see also Brody v. Village of Port Chester, 345 F.3d 103, 119 (2d Cir. 2003) (when due process is violated the appropriate remedy " depends on the stage at which the violation is found and the relief sought." ). In this action, Defendant Chief Judge Lucido argues that reinstatement is not " appropriate" in the context of a Fourteenth Amendment Due Process claim in part because such a remedy would not address the constitutional violation that occurred. Rather, Defendant Chief Judge Lucido contends that Plaintiffs are only entitled to have him provide a " notice and hearing" to determine whether good cause existed for their terminations. (Def.'s Resp. at 13).

         Defendant Chief Judge Lucido's current argument is without merit. First, the Sixth Circuit in Barachkov I already indicated that equitable prospective relief was a possible available remedy in this action. Barachkov v. Davis ( Barachkov I ), 311 Fed.Appx. 863, 872-73 (6th Cir. 2009). Indeed, in Barachkov I, the Sixth Circuit specifically reversed this Court's previous holding that prospective relief " e.g., injunction against further retaliation and reinstatement" was not available, and clarified that " [i]t is settled law that " [a] state official in his or her official-capacity, when sued for injunctive relief, would be a person under § 1983 because 'official-capacity actions for prospective relief are not treated as actions against the state.'" (citations omitted)).

         Moreover, this Court has previously addressed the issue of damages and potential remedies. ( See case no. 04-73977, ECF Nos. 123, 125, briefing by former Defendant Judge Davis regarding whether prospective injunctive relief was appropriate or merely futile; case no. 04-73975: ECF No. 84 Opinion and Order allowing equitable claims to proceed; ECF No. 171 Defs.' Mot. To Amend Damages; ECF No. 200 Order Denying Motion to Amend Damages). More specifically, after the first remand this Court addressed and rejected former Defendant Judge Davis' argument that reinstatement was not a proper remedy against her in her official capacity because it amounted to an end-around sovereign immunity. (Case no. 04-73975, ECF No. 84, at 4-7). In its April 14, 2011 Order this Court stated that " Plaintiffs' claims for prospective injunctive relief against Defendant Chief Judge Linda Davis [in her official capacity] should be allowed to go forward -- but not Plaintiffs' claims with regard to damages and back pay." ( Id. at 7). After the jury trial in this matter, this Court also rejected former Defendant Judge Davis' arguments that only nominal damages (if any) were appropriate. ( See Case no. 04-73975, ECF No. 200).

         Not only is Defendant Chief Judge Lucido's current argument (and former Defendant Judge Davis' previous argument) one in which it appears the Sixth Circuit and this Court have already previously addressed, but Defendant Chief Judge Lucido's argument is not supported by law.

         The touchstone for damages in procedural due process cases is Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). In Carey, the Supreme Court held that compensation for injuries flowing from the deprivation of a constitutional right " should be tailored to the interests protected by the particular right in question" . Id. at 259. In Carey, the Supreme Court held " compensatory damages for a procedural due process violation may not be awarded absent proof of actual injury. The Court further held, however, that even in the absence of such proof, 'the denial of procedural due process should be actionable for nominal damages.'" Franklin v. Aycock, 795 F.2d 1253, 1263 (6th Cir. 1986) (quoting Carey, 435 U.S. at 266)). The Sixth Circuit has interpreted Carey to provide that the issue of whether compensatory damages should be awarded consists of two inquiries: " [t]he first inquiry concerns causation; whether the action taken without due process is justified or, in the other words, whether the same action would have been taken been if due process had been afforded....[t]he second inquiry is whether there is proof of actual injury, such as emotional or mental distress caused by the denial of due process, to support an award of compensatory damages." Franklin, 795 F.2d at 1263. Carey, however, did not reach the particular issue of equitable relief.

         An analogous case in the Eighth Circuit is instructive and persuasive on this issue. In Hopkins v. Saunders, 199 F.3d 968 (8th Cir. 2000), an employee was terminated from his job as director of the Division of Grain Inspection with the Missouri Department of Agriculture and brought a § 1983 action against the departmental official for, inter alia, a violation of procedural due process for failing to receive notice or a hearing before his termination. In Saunders, the Eighth Circuit had previously remanded the action to the district court to determine whether reinstatement and other equitable damages were appropriate after finding the defendant officials were entitled to qualified immunity in their individual capacities (but not shielded from prospective injunctive relief in their official capacities). Id. at 972-73; see also Hopkins v. Saunders, 93 F.3d 522 (8th Cir. 1996). On remand, the district court, after a hearing, determined that the plaintiff had a property interest in his job and his constitutional right to due process was violated when he did not receive notice or a hearing prior to termination. Id. at 975. However, the district court also found that the plaintiff was dismissed for cause " and therefore refused to reinstate him, instead awarding him only nominal damages." Id.

         The parties both appealed and the Eighth Circuit affirmed the plaintiff's protected property interest in his position but held that the district court's award of nominal damages constituted " legal relief" rather than equitable and was therefore contrary to the earlier decision and remand (and also vacated the award). The Eighth Circuit then relied upon Carey in holding that federal law dictated the proper remedy for a procedural due process claim, explaining that

[t[he Supreme Court defined the proper remedy for the denial of procedural due process in Carey v. Piphus, holding that the remedy for a procedural due process violation is defined by the extent of the injury that resulted from the denial of constitutionally required process. 435 U.S. at 263-64; see also Peery v. Brakke, 826 F.2d 740, 747 (8th Cir. 1987). Thus, in the context of public employment, reinstatement is proper only where a tenured employee would not have been dismissed if his procedural due process right had been observed. ... Where an employee would have been discharged even if he had received due process, i.e. was discharged for cause, his sole injury is the lack of process and only nominal damages are proper.

Saunders, 199 F.3d at 979 (emphasis added); see also Clark v. St. Joseph Pub. School Dist., 130 F.Supp.2d 899, 905 (W.D. Mich. 2000) (relying on Saunders in finding that where an employee's due process rights were violated but she would have been discharged for cause regardless, " her sole injury is the lack of process and only nominal damages are proper." ). The Eighth Circuit then went on to find that under the " Carey remedial framework" the district court's finding (post-evidentiary hearing) that the plaintiff " would have been dismissed even if he had received due process" was supported by evidence and was not " clear error" . Id.

         Significantly, the Eighth Circuit's holdings in Saunders are in line with the Sixth Circuit's interpretation of Carey - that the pertinent inquiry in determining the proper scope of damages in the context of a violation of procedural due process is " whether the action taken without due process is justified or, in the other words, whether the same action would have been taken if due process had been afforded" . Franklin, 795 F.2d at 1263 (analyzing Carey ). Indeed, this was borne out in Newsome v. Batavia Local Sch. Dist., 842 F.2d 920, 928 (6th Cir. 1988). In Newsome, the Sixth Circuit addressed a plaintiff's claim of a violation of procedural due process in the context of a school expulsion. The Sixth Circuit found that the plaintiff had been deprived of due process when a superintendent disclosed evidence to the school board during closed deliberations that had not been previously presented during an open hearing. Id. at 927. In reversing and remanding the case to the district court the Sixth Circuit relied upon Carey and explained:

To the extent that Newsome seeks money damages to compensate him for the violation of his fourteenth amendment right, he must demonstrate, on remand, that he suffered actual injury (such as mental and emotional distress) caused by the violation. To the extent that Newsome seeks reparative relief aimed at restoring him to the position he would have occupied but for the due process violation, he is entitled to such relief unless the school district can prove, by a preponderance of the evidence, ...

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