Clayton v. Branson6/7/2005
3 for monetary, declaratory, or injunctive relief where . . . the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.
Monell v. Department of Social Servs., 436 U.S. 658, 690, 56 L.Ed. 2d 611, 635 (1978). Thus, "unlike various government officials, municipalities do not enjoy immunity from suit _ either absolute or qualified _ under § 1983. In short, a municipality can be sued under § 1983, but it cannot be held liable unless a municipal policy or custom caused the constitutional injury." Leatherman v.Tarrant County, 507 U.S. 163, 166, 122 L.Ed. 2d 517, 523 (1993). However, § 1983 does not create constitutional rights, and is available only to enforce constitutional rights whose source may be identified:
We now reject the notion that our cases permit anything short of an unambiguously conferred right to support a cause of action brought under § 1983. Section 1983 provides a remedy only for the deprivation of "rights, privileges, or immunities secured by the Constitution and laws" of the United States.
Gonzaga Univ. v. Doe, 536 U.S. 273, 283, 153 L.Ed. 2d 309, 321 (2002). "42 U. S. C. § 1983 . . . is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes." Baker v. McCollan, 443 U.S. 137, 144, n.3, 61 L.Ed. 2d 433, 442 , n.3 (1979). Accordingly, identification of a constitutionally protected right is a prerequisite of plaintiff's right to sue under § 1983. See, e.g., Camastro v. City of Wheeling, 49 F. Supp. 2d 500, 505 (N.D.W.V. 1998) ("plaintiff's claim for a violation of 42 U.S.C. § 1983 must be dismissed because plaintiff has no property right in a zoning variance; thus, plaintiff cannot state a claim for relief on the allegation that he has been deprived of a property right without due process of law"); Ware v. Fort, 124 N.C. App. 613, 616-17, 478 S.E.2d 218, 220-21 (1996) (" laintiff restshis § 1983 claim on notions of substantive and procedural due process. . . . This argument fails because plaintiff simply had no property right in the position[.]").
In the instant case, determination of the constitutionality of the city's policies and practices for settling with tort claimants requires us to decide whether the city violated plaintiff's constitutional right either to (1) procedural due process; (2) substantive due process; or (3) equal protection.
Procedural Due Process
"Procedural due process restricts governmental actions and decisions which 'deprive individuals of 'liberty' or 'property' interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.'" Peace v. Employment Sec. Comm'n, 349 N.C. 315, 321, 507 S.E.2d 272, 277 (1998) (quoting Mathews v. Eldridge, 424 U.S. 319, 332, 47 L.Ed. 2d 18, 31 (1976)). However:
A [plaintiff] must initially demonstrate a "property" interest . . . in order to invoke procedural due process protection. State law determines whether an individual [plaintiff] does or does not possess a constitutionally protected "property" interest[.]
Peace, 349 N.C.at 321, 507 S.E.2d at 278 (citations omitted). Thus, " ot every property interest requires procedural due process. A protected property interest arises when one has a legitimate claim of entitlement as decided by reference to statelaw." Dyer v. Bradshaw, 54 N.C. App. 136, 139, 282 S.E.2d 548, 550 (1981) (citing Bishop v. Wood, 426 U.S. 341, 48 L.Ed. 2d 684 (1976)). The leading United States Supreme Court case on this issue held that:<
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