*1
1341
complaint
of Po-
upon
Chief
of the
the
work,
to
unsatisfactory
failure
for
lice
Plaintiff-Appellant,
BISHOP,
D.
Carl
training
schools, “insubordina-
attend
v.
un-
tion,”
of “acts
and the commission
WOOD, etc.,
al.,
et
Defendants-
H.W.
Admittedly,
police
a
officer.”
to
suited
Appellees.
given
that
plaintiff
not
notice
was
the
No. 73-2240.
grounds allegedly sufficient
there were
him,
given
discharge
a
Appeals,
nor was he
States
of
United
Court
to
grounds
Fourth
hearing
Circuit.
if those
to determine
given
grounded.
writ-
He was
were well
Argued
8,
Feb.
1974.
discharge,
the
his
but all of
of
ten notice
21,
Decided June
1974.
In
forth.
were not set
reasons therefor
short,
plaintiff
to be af-
if
was entitled
process,
procedural
it was
due
forded
given
him;
nei-
clearly denied
he was
hearing.
a
ther notice nor
Sindermann,
James, Greensboro,
Roth
David
C.
I
read
and
J.
N.
As
recovery
(Norman
Smith,
under
Smith, Carrington,
plaintiff
entitled
was
to
B.
my
Patterson,
Curtis, Greensboro,
In
or both of two theories.
Follín &
either
C.,
view,
deprived
brief),
of an inter-
plaintiff-appellant.
he had been
N.
on
for
“property”
de-
in
he had been
est
and
Marion,
Burgin,
E.
Charles
N. C.
“liberty.”
prived of his
(Dameron
Burgin,
C., on
&
Marion N.
brief),
Sindermann
clear that
defendants-appellees.
for
Roth and
make
right
“property”
in-
to tenure
the
is a
BRYAN,
Judge,
Before
Senior Circuit
protection
proce-
entitled to the
of
terest
WIDENER,
and WINTER and
Circuit
process.
possessed
dural due
Plaintiff
Judges.
right.
of
a
ordinances
such
Under
the
governed
City Marion
his
the
of
which
PER CURIAM:
newly
employment,
policemen are
hired
record,
Upon consideration
the
of the
employees
probationary
months.
for six
briefs,
argument,
of
and oral
we are
they
permanent
then
em-
After
become
judgment
correct,
opinion the
was
below
may
permanent employee
ployees, and a
opinion
on the
and affirm
of the district
discharged only
per-
to
if he “fails
be
court,
F.Supp.
(W.D.N.C.1973).
377
501
up
of the
form work
to the standard
Affirmed.
held,
to be
classification
or continues
per-
negligent,
inefficient,
to
or unfit
WINTER,
Judge (dissenting):
Circuit
been first
form his duties
he has
[after
way
my co-panelists,
in what
is defi-
‘notified
his work
think that
Unlike
I
Regents
Roth,
564,
he
if his
is
and what
do
work
Board of
v.
cient
408 U.S.
must
6,
II,
satisfactory’].”
2701,
(1972),
to
Article
92
be
§
S.Ct.
concept
found in the four-
in
vided there was the
amount
of
Roth,
controversy.
$10,000
at
In
the Court
is
is-
teenth amendment.
Whether
Constantineau,
theory
quoted
sharply
on
Wisconsin v.
the
from
sue is
contested
433,
507,
437,
510,
plaintiff’s
pay
mit-
91
27
claim
400 U.S.
S.Ct.
that
back
after
(1971),
igation
damages
reasonably
a
that
not
L.Ed.2d
will
“[w]here
515
of
name,
person’s good
reputation,
$10,000.
honor or
to
short answer is
amount
The
integrity
pendent juris-
of
at stake
what
because
that the district court had
is
against
doing
him,
City
government
is
to
no-
the
diction over the claim
the
arising
opportunity
directly
heard are
tice and an
to be
the fourteenth
under
573,
by
request person plain- of a employment inquired
tiff’s who of the
respects plaintiff’s in which work had unsatisfactory. my mind,
been found To procedural
it therefore follows that due
process apply, should and as a minimum
plaintiff given should have notice been opportunity
of and an afforded to refute charges
the before he was dismissed. jurisdiction I add a word about the of NATIONAL LABOR RELATIONS Petitioner, BOARD, joined the district court. Plaintiff the City Marion, Carolina, of North as a v. party-defendant, together with the Chief INC., INDUSTRIES, Respondent. LORD City Manager. of Police and the Juris- No. 74-1128. alleged diction was to exist under 42 U. Appeals, of United States Court 1983; 1331(a) S.C. 28 and § U.S.C. §§ Sixth Circuit. 1343(3). course, Pape, Of Monroe v. 20, Argued June 1974. 167, 473, 365 81 U.S. S.Ct. 5 492 L.Ed.2d 28, City Decided (1961), Bruno, June 1974. and of v. Kenosha 507, 2222, 412 93 U.S. (1973), S.Ct. L.Ed.2d 37 City 109 hold that the of Marion “person” meaning
is not a within the of 1983,
42 U.S.C. and the therefore dis- § jurisdiction trict lacked court over the Nash, Counsel, Peter G. John Gen. S. against City claim the under 28 U.S.C. Deputy § Irving, Counsel, Gen. Patrick 1343(3). Jurisdiction as to the individ- Hardin, Counsel, Associate Elliott Gen. unquestionably ual defendants Moore, existed. Deputy Counsel, Associate Gen. alleged City, plaintiff But, as to the a Spielberg, Paul J. A. Woodley, Thomas deprivation right procedural of his Attys., to Board, National Labor Relations process due Washington, under the fourteenth amend- C., brief, D. peti- on for ment, juris- and the district had court tioner.