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Barnes v. City of Omaha

July 31, 2009

PERRY BARNES; MATTHEW MILLER; DAVID RATHJEN; MICHAEL SCHMID; KURT DENKER; RICHARD BERGGEN; PATRICK MCDOWELL, PLAINTIFFS -- APPELLANTS,
v.
CITY OF OMAHA, A MUNICIPAL CORPORATION; MICHAEL G. FAHEY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; THOMAS WARREN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; PAUL LANDOW, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, DEFENDANTS -- APPELLEES.



Appeal from the United States District Court for the District of Nebraska.

The opinion of the court was delivered by: Melloy, Circuit Judge.

Submitted: June 12, 2008

Before MELLOY, ARNOLD, and BENTON, Circuit Judges.

The Plaintiffs appeal the district court's*fn1 adverse grant of summary judgment dismissing their claim that the Defendants unconstitutionally deprived them of their employment without due process of law. We affirm.

I.

The parties do not dispute the material facts of this case. The Plaintiffs were police officers for the City of Elkhorn, Nebraska, which Nebraska law classified as a "first class" city. See Neb. Rev. Stat. § 16-101. Nebraska law classifies Defendant City of Omaha, Nebraska, as a "metropolitan class" city. See id. § 14-101. At all times relevant to this action, Defendant Michael G. Fahey was the Mayor of Omaha, Defendant Thomas Warren was Omaha's Chief of Police, and Defendant Paul Landow was Mayor Fahey's Chief of Staff.

Nebraska law permits metropolitan class cities to annex "any adjoining city of the first class having less than ten thousand population." Id. § 14-117. Upon annexing a first class city, Nebraska Revised Statute section 14-118 states that the metropolitan class city "succeed[s] to all the . . . contracts, obligations, and choses in action of every kind held by or belonging to the city . . . annexed or merged with it[] and . . . shall be liable for and recognize, assume, and carry out all valid contracts, obligations and licenses of any city . . . so annexed." Subject to limits irrelevant to this matter, Nebraska Revised Statute section 14-124 also states that "[u]pon such annexation and merger taking effect the terms and tenure of all offices and officers of any city or village so consolidated with the metropolitan city shall terminate and entirely cease." Id. § 14-124. Finally, also subject to limitations irrelevant to this matter, Nebraska law permits first class cities to annex "any contiguous or adjacent lands, lots, tracts, streets, or highways as are urban or suburban in character and in such direction as may be deemed proper." Id. § 16-117.

In 2005, Elkhorn's population was less than 10,000. To prevent Omaha from annexing it, Elkhorn attempted to raise its population above 10,000 by passing ordinances to annex its surrounding territories. In response, Omaha passed an ordinance to annex Elkhorn, effective March 24, 2005.

On March 9, 2005, Elkhorn sued Omaha in state court. Elkhorn sought an injunction to prohibit Omaha's enforcement of its annexation ordinance as well as a declaration that Omaha's annexation ordinance was invalid. Omaha counterclaimed and sought an injunction to prevent Elkhorn from enforcing its annexation ordinances and a declaration that Elkhorn's annexation ordinances were invalid. On March 18, 2005, both cities agreed to a mutual injunction preventing them from enforcing their annexation ordinances pending the legal resolution of their dispute. After a bench trial, a state district court found in Omaha's favor but extended the injunction pending Elkhorn's appeal. On January 12, 2007, the Nebraska Supreme Court affirmed the state district court's findings in favor of Omaha and concluded that "Elkhorn ceased to exist as a separate municipality on March 24, 2005, the date that Omaha's annexation ordinance became effective." City of Elkhorn v. City of Omaha, 725 N.W.2d 792, 811 (Neb. 2007).

On March 1, 2007, the state district court entered judgment in favor of Omaha in accordance with the Nebraska Supreme Court's mandate. That same day, Omaha officials began providing written notices to the Plaintiffs informing them that their employment had been terminated. After each Plaintiff received notification, the Plaintiffs requested due process hearings to challenge their terminations. Omaha officials denied the Plaintiffs' requests, however, because they stated that the Plaintiffs had not been Omaha employees and, therefore, were not entitled to hearings.

On March 23, 2007, the Plaintiffs filed this action in federal court. The Plaintiffs allege that the Defendants unconstitutionally deprived them of their employment without due process, entitling them to equitable relief and damages under the Fifth and Fourteenth Amendments to the U.S. Constitution and 42 U.S.C. § 1983. The district court dismissed the Plaintiffs claims on summary judgment, and the Plaintiffs appeal.

II.

"We review de novo the district court's grant of summary judgment, viewing all evidence and reasonable inferences in the light most favorable to the nonmoving party." Habhab v. Hon, 536 F.3d 963, 966 (8th Cir. 2008) (quotation omitted). "If there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, we may affirm summary judgment for any reason supported by the record, even if it differs from the rationale of the district court." Id. (internal quotation and alterations omitted).

The Fourteenth Amendment to the U.S. Constitution prohibits state deprivations of property without due process of law,*fn2 and "[i]t is . . . well settled that municipal ordinances adopted under state authority constitute state action and are within the prohibition of the [Fourteenth Amendment]." Carlson v. California, 310 U.S. 106, 109 n.1 (1940) (quotation omitted). As a threshold matter, plaintiffs alleging that a state deprived them of employment without due process must first demonstrate that they had property interests in their continued employment. See Smutka v. City of Hutchinson, 451 F.3d 522, 526 (8th Cir. 2006). For due process purposes, a plaintiff has a property interest in disputed property when he or she has a "legitimate claim of entitlement" to it. Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972); see also Bennett v. Watters, 260 F.3d 925, 927 (8th Cir. 2001) (stating, where a terminated police department employee had alleged that a city terminated her without due process, that "[a] property interest arises from a 'legitimate claim of entitlement' to continuing employment" (quoting Roth, 408 U.S. ...


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