Davis v. Carteret County ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BERNICE DAVIS,
Plaintiff-Appellant,
v. No. 96-1973
CARTERET COUNTY; DIANNA TALTON,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
Terrence W. Boyle, District Judge.
(CA-95-58-4-BO)
Argued: June 4, 1997
Decided: August 28, 1997
Before HALL, LUTTIG, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Ralph Thomas Bryant, Jr., Havelock, North Carolina, for
Appellant. J. Randall Hiner, Sr., WARD & SMITH, P.A., New Bern,
North Carolina, for Appellees. ON BRIEF: Cheryl A. Marteney,
WARD & SMITH, P.A., New Bern, North Carolina, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellant Bernice Davis served as Deputy Tax Collector for Car-
teret County. When majority control of Carteret County's Board of
Supervisors changed hands from the Republicans to the Democrats,
defendant Dianna Talton became the new Tax Assessor. On Novem-
ber 1, 1993, the Board of Supervisors, consistent with Talton's
advice, voted to abolish the position of Deputy Tax Collector, then
held by Davis, who is a Republican. Davis brought this § 1983 suit
against Talton and Carteret County, alleging that Talton violated her
First Amendment rights by providing false and misleading informa-
tion to the Board of Commissioners in order to secure the termination
of Davis' position of Deputy Tax Collector because of Davis' politi-
cal affiliation, and that the County violated her Fourteenth Amend-
ment Due Process rights by depriving her of her property interest in
continued employment without providing her the protections required
by the County's personnel ordinances. The district court granted sum-
mary judgment to both defendants.
The district court concluded that Talton was protected from liabil-
ity by legislative immunity for any participation that she may have
had in the Board's legislative act of abolishing the position because
"[w]here an executive official participates in the legislative process by
presenting the legislative body with an opinion relating to the budget-
ary and staffing needs of her agency, that official is entitled to claim
legislative immunity." J.A. at 102. Even assuming that the district
court's reasoning would alone be insufficient to support the grant of
summary judgment to defendant Talton, we nonetheless conclude that
Talton is entitled to summary judgment on the grounds of qualified
immunity. Davis has failed to point to a clearly established right,
under either the patronage dismissal prohibition or any other constitu-
tional doctrine, that is violated by a person who does not make the
final decision to abolish a governmental position, but instead merely
provides advice to that final decisionmaker. Additionally, Davis has
failed to proffer factual support for her assertion that Talton's advice
to the Board of Commissioners caused the Board to terminate her
position. Therefore, the district court was correct in awarding sum-
mary judgment to Talton.
2
Davis' due process claim against Carteret County fails because
Davis cannot point to any procedural protections provided by the Due
Process clause which have been violated here. Rather, Davis relies
upon procedural protections provided by county ordinances for cer-
tain forms of "separation of employees from positions in the service
of the County." County of Carteret, Personnel Ordinance, Art. VII,
§ 1 (J.A. at 40). However, even if those ordinances apply to the aboli-
tion of a position by the Board of Commissioners, those ordinances
do not establish the procedures required by the Due Process Clause
of the Fourteenth Amendment. Garraghty v. Virginia Dept. of
Corrections, 52 F.3d 1274, 1285 (4th Cir. 1995) (stating, in the con-
text of a claim of due process violation in the termination of public
employment, that "if a state grievance law grants more procedural
rights than the constitution requires, failure to comply with state law
does not create a federal due process violation."). Davis has not dem-
onstrated that the Board violated any procedural protections indepen-
dent of state law. Therefore, the district court did not err in granting
summary judgment to Carteret County.
For the reasons stated herein, the judgment of the district court is
affirmed.
AFFIRMED
3