NO. 89-071
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
LON CUMMINGS,
Plaintiff and Appellant,
TOWN OF PLAINS, ROD STAMM,
JACK HARWOOD, FORREST KAUFMAN,
W.L. VACURA, JEAN MORRISON
and HELGA MARTIN,
Defendants and Respondents.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Sanders,
The Honorable C. B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Matthew H. OINeill argued, French, Mercer & Grainey,
Polson, Montana
i . For Respondent:
3-
~---i Randy J. Cox argued, Boone, Karlberg & Haddon,
_
P--
Missoula, Montana (Plains); M. Richard Gebhardt
14
-
c - -- argued, Missoula, Montana (Stamm, Harwood, Kaufman,
!-' a - -. - Vacura, Morrison and Martin)
i.
: C\J
LL d
Submitted: February 8, 1990
Decided: April 12, 1990
3
Justice John Conway Harrison delivered the Opinion of the Court.
This is an appeal from summary judgment by the Twentieth
Judicial District, Sanders County, Montana, on claims against the
Town of Plains and the Plains town council members arising out of
appellant's discharge as a relief police officer. We reverse and
remand for proceedings consistent with this opinion.
Appellant presents the following issues for review:
1. Does 5 2-9-111, MCA, grant governmental entities immunity
from a lawsuit for damages for breach of contract?
2. Does 5 2-9-111, MCA, grant members of legislative bodies
immunity from their intentional torts?
3. Did the District Court err in granting summary judgment
as to Count VIII, a 51983 claim, of Appellant's Second Amended
Complaint?
4. Did the District Court improperly switch the burden of
proof to the non-moving party in granting Defendants' Motion for
Summary Judgment as to all counts?
Apparently, the District Court based its ruling entirely on
questions of law. Since no discovery has occurred, the following
facts are primarily stated by appellant.
Plains employed appellant as a part-time police officer in
October of 1984. In 1985 the town council budgeted appellant's
position at 100 hours per month through June 30, 1986. On January
6, 1986, the town council eliminated the part-time police officer
position, allegedly because of budget considerations, terminating
appellant. Subsequently, the Plains mayor reinstated appellant as
2
a relief police officer.
During this period of time, appellant, together with other
Plains' citizens, circulated a recall petition for four town
council members. On or about October 15, 1986, four of the
individually named defendant town council members met and drafted
a letter to the mayor stating that the town council would not honor
any claims of employment for appellant. The reasons given for the
council's position were that appellant had previously filed a
lawsuit against the individual council members, appellant had
participated in the recall petition effort, and they felt appellant
did not possess the minimum standards required of officers of the
law. Allegedly the council members drafted this letter outside of
a regular council meeting and presented it to the mayor at a public
luncheon and to various members of the Sanders County press. On
October 16, 1986, the mayor discharged appellant effective
immediately.
The mayor again reinstated appellant in November of 1986 and
appellant continued to work as a relief police officer until
January of 1987. On January 22, 1987, the town council held a
special meeting that was closed to the public. After the closed
meeting, the town council voted, in effect, to terminate appellant.
Respondents allege that all actions taken by the individual
defendants were taken in their official capacities. Respondents
also claim that the first two alleged wrongful discharges are
irrelevant because appellant went back to work after each
discharge.
Appellant filed the original complaint on June 4, 1986. Two
amendments followed, the first in July of 1986 and the second in
October of 1987. The second amended complaint names as defendants
the Town of Plains (Plains) and individual members of the Plains
town council. Appellant pled ten counts in his second amended
complaint as follows: Count I - Breach of the Employment Contract;
Count I1 - Illegal Meeting leading to Wrongful Discharge; Count
I11 - Wrongful Discharge; Count IV - Wrongful Discharge; Count V -
Breach of the Implied Covenant of Good Faith and Fair Dealing;
Count VI - Negligent Infliction of Emotional Distress; Count VII -
~ntentionalInfliction of motional Distress; Count VIII - a 51983
action; Count IX -- Negligence; Count X - Defamation.
On December 29, 1987, Plains filed a motion to strike
appellant's request for punitive damages which was granted on July
5, 1988.
Plains and the individual defendants moved separately for
summary judgment in July and September of 1988 and appellant
opposed. Defendants based their summary judgment motions solely
on 2-9-111, MCA, and this Court's decision in Bieber v.
Broadwater County (1988), 232 Mont. 487, 759 P.2d 145. Relying on
Bieber the District Court granted summary judgment for all
respondents on November 29, 1988. Appellant had discovery pending
at the time the District Court decided the summary judgment
motions.
Appellant moved the District Court to alter or amend the
judgment, specifically addressing only four counts of the ten-
count complaint, the breach of the employment contract, the two
intentional tort claims and the 51983 action. Appellant contended
that, as a matter of law, 5 2-9-111, MCA, did not apply to those
causes of action. The District Court denied the motion apparently
ruling that Bieber controlled the intentional torts and breach of
contract claims. Further the District Court held that appellant
did not show the existence of any material facts sufficient to
sustain a 51983 claim. This appeal followed.
We have examined all of the issues raised by appellant and we
find the issue regarding the 31983 claim to be controlling. We,
therefore, decline to discuss the other issues.
As part of his motion to alter or amend judgment, appellant
argued that State legislative immunity did not pre-empt a 42 U.S. C.
51983 Civil Rights claim. In its opinion, the District Court
acknowledged the supremacy of the 51983 claim, but held that
because appellant asserted only conclusions in the 51983 claim that
appellant had not raised genuine issues of material fact.
Appellant contends that the District Court erred in its
conclusion that appellant asserted only conclusions in his 51983
claim which is set forth in Count VIII of the second amended
complaint. Count VIII, appellant argues, realleges by
incorporation many factual allegations previously recited in the
complaint as allowed by Rule 10(c), M.R.Civ.P. Also incorporated
pursuant to Rule 10(c) as part of these allegations is the letter
written by the town council stating their reasons for their
decision not to honor any of appellant's employment claims.
We hold that the District Court erred in not considering as
part of Count VIII the factual allegations incorporated by
reference. Rule 10(c), M.R.Civ.P. states:
Rule 10(c) Adoption by reference--exhibits.
Statements in a pleading may be adopted by
reference in a different part of the same
pleading or in another pleading or in any
motion. A copy of any written instrument
which is an exhibit to a pleading is a part
thereof for all purposes.
Plainly under Ruie 10(c), any factual allegations or exhibits
incorporated by reference into a separate count of a pleading
become a part of that separate count. In the instant case, the
many factual allegations previously recited, as well as the written
letter attached as an exhibit to the complaint, became an integral
component of Count VIII, the 81983 claim. The fact that the
District Court had dismissed other legal theories set forth earlier
in the complaint which relied on the same factual allegations does
not negate the effect of Rule 10(c), M.R.Civ.P.
Even considering the incorporated factual material,
respondents assert that appellant did not adequately plead a 51983
Civil Rights violation. Among other things, they contend that
appellant did not allege that the individuals involved were acting
under color of State law, or that the individuals were acting
pursuant to an official policy so as to expose the Town of Plains
to liability. Further, respondents allege that the individuals
were at all times acting as statutorily authorized.
Title 42 U.S.C. 51983 provides a remedy for violations of
rights guaranteed by the Constitution and laws of the United
States. To adequately plead a 51983 claim, a plaintiff must allege
"(1) that the conduct complained of was committed . . . under color
of state law; and (2) that this conduct deprived them of rights,
privileges, or immunities secured by the Constitution or laws of
the United States. (Emphasis in original.)" Evans v. McKay (9th
Cir. 1989), 869 F.2d 1341, 1347, citing Parratt v. Taylor (1981),
451 U.S. 527, 535, 101 S.Ct. 1908, 1912-13, 68 L.Ed.2d 420, 428.
Further, the United States Supreme Court "has established that the
state action requirement in a section 1983 claim is satisfied when
the party charged with an alleged constitutional deprivation 'may
fairly be said to be a state actor. 'I1 Evans, 869 F.2d at 1347,
citing Lugar v. Edmondson Oil Co., Inc (1982), 457 U.S. 922, 937,
102 S.Ct. 2744, 2754, 73 L.Ed.2d 482, 495.
Respondents1 argument that appellant did not allege that
respondents were acting under the color of state law appears to
rest on the fact that appellant's complaint does not contain those
specific words. The United States Supreme Court's above-mentioned
guideline mandates that complaints be liberally construed. Thus,
the specific words "under color of state law1'are unnecessary. In
the instant case, the complaint does allege that the individual
defendants were duly elected or appointed officials acting in their
official capacities. From these allegations the respondents ''may
fairly be said to be state actors1'as their authority is derived
from and governed by state law. We hold that appellant has
adequately pled a civil rights claim pursuant to 42 U.S.C. 51983.
The other alleged deficiencies in appellant's complaint relate
to substantive issues such as the existence of a right, immunity
defenses of the individual respondents, and the existence of a
custom or policy. Some of these issues involve questions of fact
and some involve questions of law. None of these issues have been
directly addressed by either party and the District Court made no
findings on any substantive issues that arise under a 51983 claim.
Thus, consideration by us of any other aspect of appellant's 31983
cause of action would be premature.
We reverse the District Court and remand for further
proceedings consistent with this opinion.
We concur:
/..-CI,
Justices '
Judge of-the ~istrictCourt sitting
for Chief Justice J.A. Turnage